re : vijay kurle & ors. …alleged contemnor(s) · re : vijay kurle & ors. …alleged...
TRANSCRIPT
REPORTABLE
IN THE SUPREME COURT OF INDIAINHERENT JURISDICTION
SUO MOTU CONTEMPT PETITION (CRIMINAL) NO. 2 OF 2019
RE : VIJAY KURLE & ORS. …ALLEGED CONTEMNOR(S)
J U D G M E N T
Deepak Gupta, J.
A Bench of this Court while dealing with Suo Motu
Contempt Petition (Criminal) No.1 of 2019 took note of a letter
dated 23.03.2019 received by the office of the Judges of the
Bench on 25.03.2019. This was a copy of the letter sent by the
President of the Bombay Bar Association and the President of the
Bombay Incorporated Law Society to the President of India, Chief
Justice of India and the Chief Justice of the Bombay High Court.
In the said letter, reference was made to two complaints – one
made by the Indian Bar Association, dated 20.03.2019 through
alleged contemnor no. 1, Shri Vijay Kurle, State President of
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Maharashtra and Goa of the Indian Bar Association, and the
second complaint dated 19.03.2019 made by alleged contemnor
no. 2, Shri Rashid Khan Pathan, National Secretary of the
Human Rights Security Council. It was mentioned that these
complaints have not only been sent to the President of India and
the Chief Justice of India but also have been circulated in the
social media and the complaints were attached as Annexures1
and 2 to the said letter. The Bench took note of the letter and the
complaints attached to the said letter and specifically noted the
prayers made in both the complaints and found that both the
complaints are substantially similar. The Bench on noting the
allegations made in the complaints was of the view that
scandalous allegations have been made against the members of
the said Bench and, therefore, notice was issued to Shri Vijay
Kurle, alleged contemnor no. 1, Shri Rashid Khan Pathan, alleged
contemnor no. 2, Shri Nilesh Ojha, alleged contemnor no. 3 and
Shri Mathews Nedumpara, alleged contemnor no. 4. The Bench
also directed that the matter be placed before the Chief Justice of
India to constitute an appropriate Bench to hear and decide the
contempt case.
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2. After notice was issued, Shri Nedumpara filed an
application, being Criminal M.P. No. 60568/2019 for discharge in
which he stated that he barely knew Shri Vijay Kurle and Shri
Nilesh Ojha, and did not know Shri Rashid Khan Pathan at all.
He denied any role in sending those complaints. Therefore, vide
order dated 02.09.2019 we had discharged Shri Mathews
Nedumpara but made it clear that if during the course of
proceedings any evidence comes up against him, he would be
summoned again. On the same date, Shri Nilesh Ojha who
appears in person stated that the Registry has not given complete
copy of the annexures attached with the letter of the Bombay Bar
Association and Bombay Incorporated Law Society to him along
with the notice. The Registry was directed to supply the
annexures to him. On 30.09.2019 we were informed that the
Registry has not given complete annexures. Thereafter, we had
directed the Registry to supply 3 sets of Annexures P1 to P15
attached with the letter which were sent to alleged contemnor
nos. 1 to 3. On the same date, we appointed Shri Sidharth
Luthra, learned senior counsel, as amicus curiae to assist the
Court. On 04.11.2019, alleged contemnor nos. 1 to 3 admitted
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that all the documents have been supplied to them and
thereafter, fresh replies were permitted to be filed.
3. In the letter of the Bombay Bar Association and the
Bombay Incorporated Law Society reference was made not only to
the allegations in the complaints levelled against the 2 Hon’ble
Judges of this Court but also other allegations were made which
indicated that alleged contemnor nos. 1 to 3 had committed
contempt of the Bombay High Court also. On 09.12.2019 we had
clarified that in view of the original order taking suo motu notice
and the documents placed on record, the charge against Shri
Vijay Kurle, alleged contemnor no. 1 was only in respect of the
scandalous allegations levelled against 2 Judges of this Court in
the letter dated 20.03.2019 sent by him as State President of
Maharashtra and Goa of the Indian Bar Association. We have
also clarified that as far as Shri Rashid Khan Pathan, alleged
contemnor no. 2, is concerned, the charge against him only
relates to the scandalous allegations made against 2 Judges of
this Court in the letter dated 19.03.2019 sent by him. As far as
Shri Nilesh Ojha, alleged contemnor no. 3 was concerned, the
only document against him was also the letter dated 20.03.2019
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which letter was not signed by him, but admittedly, he is
President of the Indian Bar Association. We had given
opportunity to Shri Nilesh Ojha to explain his position whether
the letter dated 20.03.2019 was sent with his consent or under
his authority.
4. It would be pertinent to mention that Shri Vijay Kurle and
Shri Rashid Khan Pathan have not denied that they are the
authors of the letters which are signed by them.
5. The basis of the present contempt are the two letters dated
20.03.2019 and 19.03.2019 admittedly signed by alleged
contemnor nos. 1 and 2 i.e. Shri Vijay Kurle and Shri Rashid
Khan Pathan respectively. These letters are very lengthy running
into more than 250 pages combined. Therefore, it would not be
feasible to extract the entire letters but we have no doubt in our
mind that the tenor of the letters is highly disrespectful, and
scandalous and scurrilous allegations have been levelled against
2 Judges of this Court.
6. The three alleged contemnors have raised a number of
preliminary issues. We may summarise the same as follows:
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(i) That the Bench of Justice R. F. Nariman and Justice
Vineet Saran could not have taken cognizance of the case
because the case was not assigned to them by the Chief
Justice and that both the Judges acted as Judge in their
own cause. (ii) That the Bench has not suo motu taken notice of the
contempt and therefore the Registry cannot treat it as a
suo motu petition.(iii) That even in suo motu contempt proceedings the consent
of the Attorney General is necessary.(iv) That the proper procedure of framing a charge is not
followed because the defects at the initial stage cannot be
cured by later orders/developments.(v) That the Judges were bound to disclose the source of
information.
Powers of the Supreme Court
7. Before we deal with the objections individually, we need to
understand what are the powers of the Supreme Court of India in
relation to dealing with contempt of the Supreme Court in the
light of Articles 129 and 142 of the Constitution of India when
read in conjunction with the Contempt of Courts Act, 1971.
According to the alleged contemnors, the Contempt of Courts Act
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is the final word in the matter and if the procedure prescribed
under the Contempt of Courts Act has not been followed then the
proceedings have to be dropped. On the other hand, Shri
Sidharth Luthra, learned amicus curiae while making reference
to a large number of decisions contends that the Supreme Court
being a Court of Record is not bound by the provisions of the
Contempt of Courts Act. The only requirement is that the
procedure followed is just and fair and in accordance with the
principles of natural justice.
Article 129 of the Constitution of India reads as follows:
“129. Supreme Court to be a court of record. TheSupreme Court shall be a court of record and shall haveall the powers of such a court including the power topunish for contempt of itself.”
A bare reading of Article 129 clearly shows that this Court being
a Court of Record shall have all the powers of such a Court of
Record including the power to punish for contempt of itself. This
is a constitutional power which cannot be taken away or in any
manner abridged by statute.
Article 142 of the Constitution of India reads as follows:
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“142. Enforcement of decrees and orders of SupremeCourt and orders as to discovery, etc. (1) TheSupreme Court in the exercise of its jurisdiction maypass such decree or make such order as is necessary fordoing complete justice in any cause or matter pendingbefore it, and any decree so passed or order so madeshall be enforceable throughout the territory of India insuch manner as may be prescribed by or under any lawmade by Parliament and, until provision in that behalfis so made, in such manner as the President may byorder prescribe.
(2) Subject to the provisions of any law made in thisbehalf by Parliament, the Supreme Court shall, asrespects the whole of the territory of India, have all andevery power to make any order for the purpose ofsecuring the attendance of any person, the discovery orproduction of any documents, or the investigation orpunishment of any contempt of itself.”
Article 142 also provides that this Court can punish any person
for contempt of itself but this power is subject to the provisions of
any law made by parliament. A comparison of the provisions of
Article 129 and clause (2) of Article 142 clearly shows that
whereas the founding fathers felt that the powers under clause
92) of Article 142 could be subject to any law made by
parliament, there is no such restriction as far as Article 129 is
concerned. The power under clause (2) of Article 142 is not the
primary source of power of Court of Record which is Article 129
and there is no such restriction in Article 129. Samaraditya Pal
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in the Law of Contempt1 has very succinctly stated the legal
position as follows:
“Although the law of contempt is largely governed by the1971 Act, it is now settled law in India that the HighCourts and the Supreme Court derive their jurisdictionand power from Articles 215 and 129 of theConstitution. This situation results in giving scope for“judicial selfdealing”.
The High Courts also enjoy similar powers like the Supreme
Court under Article 215 of the Constitution. The main argument
of the alleged contemnors is that notice should have been issued
in terms of the provisions of the Contempt of Courts Act and any
violation of the Contempt of Courts Act would vitiate the entire
proceedings. We do not accept this argument. In view of the fact
that the power to punish for contempt of itself is a constitutional
power vested in this Court, such power cannot be abridged or
taken away even by legislative enactment.
8. To appreciate the rival contention, we shall have to make
reference to a number of decisions relied upon by both the
parties. The first judgment on the point is Sukhdev Singh
Sodhi v. The Chief Justice and Judges of the Pepsu High
1 Pgs. 910, The Law of Contempt: Contempt of Courts and Legislatures, Fifth Edn.,LexisNexis Butterworths Wadhwa, Nagpur (2013)
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Court2. It would be pertinent to mention that the said judgment
was given in the context of the Contempt of Courts Act, 1952.
The issue before this Court in the said case was whether
contempt proceedings could said to be the proceedings under the
Criminal Procedure Code, 1973 (Cr.PC) and the Supreme Court
had the power to transfer the proceedings from one court to
another under the Cr.PC. Rejecting the prayer for transfer, this
Court held as follows:
“….We hold therefore that the Code of CriminalProcedure does not apply in matters of contempt triableby the High Court. The High Court can deal with itsummarily and adopt its own procedure. All that isnecessary is that the procedure is fair and that thecontemner is made aware of the charge against him andgiven a fair and reasonable opportunity to defendhimself. This rule was laid down by the Privy Council inIn re Pollard (L.R. 2 P.C. 106 at 120) and was followed inIndia and in Burma in In re Vallabhdas (I.L.R. 27 Bom.394 at 390) and Ebrahim Mamoojee Parekh v. KingEmperor (I.L.R. 4 Rang. 257 at 259261). In our viewthat is still the law.”
9. A Constitution Bench of this Court in Shri C. K. Daphtary
and Others v. Shri O.P. Gupta and Others3 was dealing with a
case where the contemnor had published a pamphlet casting
scurrilous aspersions on 2 Judges of this Court. During the
2 1954 SCR 4543 1971 (1) SCC 626
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course of argument, the contemnor raised a plea that all the
evidence has not been furnished to him and made a request that
the petitioner be asked to furnish the “pamphlet” or “book”
annexed to the petition. The Court rejected this argument
holding that the booklet/pamphlet had been annexed to the
petition in original and the Court had directed that the matter be
decided on affidavits.
10. In respect of the absence of a specific charge being framed,
the Court held that a specific charge was not required to be
framed and the only requirement was that a fair procedure
should be followed. Dealing with the Contempt of Courts Act,
1952 this Court held as follows:
“58. We are here also not concerned with any law madeby Parliament. Article 129 shows that the Supreme Courthas all the powers of a Court of Record, including thepower to punish for contempt of itself; and Article 142(2)goes further and enables us to investigate any contemptof this Court.”
11. Thereafter, this Court approved the observations in
Sukhdev Singh Sodhi’s case (supra) and held as follows:
“78. In our view that is still the law. It is in accordancewith the practice of this Court that a notice was issued tothe respondents and opportunity given to them to fileaffidavits stating facts and their contentions. At onestage, after arguments had begun Respondent No. 1asked for postponement of the case to engage some
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lawyers who were engaged in fighting elections. Werefused adjournment because we were of the view thatthe request was not reasonable and was made with aview to delay matters. We may mention that the firstrespondent fully argued his case for a number of days.The procedure adopted by us is the usual procedurefollowed in all cases.”
12. According to the alleged contemnors, both the aforesaid
judgments are per incuriam after coming into force of the
Contempt of Courts Act, 1971. They are definitely not per
incuriam because they have been decided on the basis of the law
which admittedly existed, but for the purposes of this case, we
shall treat the argument of the alleged contemnors to be that the
judgments are no longer good law and do not bind this Court. It
has been contended by the alleged contemnors that both the
aforesaid cases are overruled by later judgments. We shall now
refer to some of the decisions cited by the parties.
13. In P.N. Duda v. P.Shiv Shanker and Others4 the
respondent, Shri P. Shiv Shiv Shanker, who was a former judge
of the High Court and was the Minister for Law, Justice and
Company Affairs delivered a speech which was said to be
contemptuous. A petition was filed by the petitioner P. N. Duda
who was an advocate of this Court but this Court declined to4 (1988) 3 SCC 167
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initiate contempt proceedings. At the outset, we may note that
while giving the reasons for not initiating contempt, though this
Court held that the contempt petition was not maintainable, it
went into the merits of the speech delivered by Shri P. Shiv
Shanker and held that there was no imminent danger of
interference with the administration of the justice and bringing
administration into disrepute. It was held that Shri P. Shiv
Shanker was not guilty of contempt of this Court. Having held
so, the Court went on to decide whether the petition could have
been entertained on behalf of Shri Duda. In the said petition,
Shri Duda had written a letter to the Attorney General seeking
consent for initiating contempt proceedings against Shri P. Shiv
Shanker. A copy of the said letter was also sent to the Solicitor
General of India. While seeking consent, the petitioner had also
stated that the Attorney General may be embarrassed to give
consent for prosecution of the Law Minister and in view of the
said allegations, the Attorney General felt that the credibility and
authority of the office of the Attorney General was undermined
and therefore did not deny or grant sanction for prosecution. The
Court held that the petitioner could not move the Court for
initiating contempt proceedings against the respondent without
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consent of the Attorney General and the Solicitor General. The
relevant portion of the judgment reads as follows:
“39. The question of contempt of court came up forconsideration in the case of C.K. Daphtary v. O.P. Gupta.In that case a petition under Article 129 of theConstitution was filed by Shri C.K. Daphtary and threeother advocates bringing to the notice of this Courtalleged contempt committed by the respondents. Therethis court held that under Article 129 of the Constitutionthis Court had the power to punish for contempt of itselfand under Article 143(2) it could investigate any suchcontempt. This Court reiterated that the Constitutionmade this Court the guardian of fundamental rights. ThisCourt further held that under the existing law ofcontempt of court any publication which was calculatedto interfere with the due course of justice or properadministration of law would amount to contempt ofcourt. A scurrilous attack on a Judge, in respect of ajudgment or past conduct has in our country theinevitable effect of undermining the confidence of thepublic in the Judiciary ; and if confidence in Judiciarygoes administration of justice definitely suffers. In thatcase a pamphlet was alleged to have containedstatements amounting to contempt of the court. As theAttorney General did not move in the matter, thePresident of the Supreme Court bar and the otherpetitioners chose to bring the matter to the notice of thecourt. It was alleged that the said President and the othermembers of the bar have no locus standi. This Court heldthat the court could issue a notice suo motu. ThePresident of the Supreme Court bar and other petitionerswere perfectly entitled to bring to the notice of the courtany contempt of the court. The first respondent referredto Lord Shawcross Committee’s recommendation in U.K.that “proceedings should be instituted only if theAttorney General in his discretion considers themnecessary”. This was only a recommendation made in thelight of circumstances prevailing in England. But that isnot the law in India, this Court reiterated. It has to beborne that decision was rendered on March 19, 1971 andthe present Act in India was passed on December 24,1971. Therefore that decision cannot be of anyassistance. We have noticed Sanyal Committee’srecommendations in India as to why the Attorney General
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should be associated with it, and thereafter in U.K. therewas report of Phillimore Committee in 1974. In India thereason for having the consent of the Attorney Generalwas examined and explained by Sanyal CommitteeReport as noticed before.”
14. The alleged contemnors contended that the last portion of
the aforesaid paragraph shows that the judgment in C. K.
Daphtary’s case (supra) having been delivered prior to the
enactment of Contempt of Courts Act, 1971 is no longer
applicable. We may however point out that in the very next
paragraph in the same judgment, it was held as follows:
“40. Our attention was drawn by Shri Ganguly to adecision of the Allahabad High Court in G.N. Verma v.Hargovind Dayal (AIR 1975 All 52) where the DivisionBench reiterated that Rules which provide for the mannerin which proceedings for contempt of court should betaken continue to apply even after the enactment of theContempt of Courts Act, 1971. Therefore cognizancecould be taken suo motu and information contained inthe application by a private individual could be utilised.As we have mentioned hereinbefore indubitablycognizance could be taken suo motu by the court butmembers of the public have also the right to move thecourt. That right of bringing to the notice of the court isdependent upon consent being given either by theAttorney General or the Solicitor General and if thatconsent is withheld without reasons or withoutconsideration of that right granted to any other personunder Section 15 of the Act that could be investigated inan application made to the court.”
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15. The alleged contemnors rely on certain observations in the
concurring judgment of Justice Ranganathan in the same
judgment wherein he has approved the following passage from a
judgment of the Delhi High Court in Anil Kumar Gupta v. K.
Subba Rao and Ors.5:
“The office is to take note that in future if any informationis lodged even in the form of a petition inviting this Courtto take action under the Contempt of Courts Act orArticle 215 of the Constitution, where the informant isnot one of the persons named in Section 15 of the saidAct, it should not be styled as a petition and should notbe placed for admission on the judicial side. Such apetition should be placed before the Chief Justice fororders in Chambers and the Chief Justice may decideeither by himself or in consultation with the other judgesof the Court whether to take any cognizance of theinformation. The office is directed to strike off theinformation as “Criminal Original No. 51 of 1973” and tofile it.”
Thereafter Justice Ranganathan made the following observation:
“54....I think that the direction given by the Delhi HighCourt sets out the proper procedure in such cases andmay be adopted, at least in future, as a practice directionor as a rule, by this Court and other High Courts….”
16. Relying upon the aforesaid observations in the judgment
delivered by Justice Ranganathan it is submitted that the
petition could not have been placed for admission on the judicial
side but should have been placed before the Chief Justice and
5 ILR (1974) 1 Del 1
16
not before any other Bench. We are not at all in agreement with
the submission. What Justice Ranganathan observed is an obiter
and not the finding of the Bench and this is not the procedure
prescribed under the Rules of this Court.
17. This Court has framed rules in this regard known as The
Rules to Regulate Proceedings for Contempt of the Supreme
Court, 1975 (for short ‘the Rules’) and relevant portion of Rule 3
of the Rules reads as follows:
“3. In case of contempt other than the contempt referredto in rule 2, the Court may take action –
(a) suo motu, or(b) on a petition made by AttorneyGeneral, or Solicitor
General, or(c) on a petition made by any person, and in the case of
a criminal contempt with the consent in writing ofthe AttorneyGeneral or the SolicitorGeneral.”
18. A bare perusal of Rule 3 shows that there are 3 ways for
initiating contempt proceedings. The first is suo motu, the second
is on a petition made by the Attorney General or the Solicitor
General, and the third is on the basis of a petition made by any
person and where criminal contempt is involved then the consent
of the Attorney General or the Solicitor General is necessary.
Rules 4 and 5 prescribe for the manner of filing of a petition
under Rules 3(b) and 3(c). Rule 4 lays down the requirements of
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a petition to be filed under Rules 3(b) and 3(c) and Rule 5
requires that every petition under Rule 3(b) or Rule 3(c) shall be
placed before the Court for preliminary hearing. Rule 6 requires
notice to the person charged to be in terms of Form I. Rule 6
reads as follows:
“6. (1) Notice to the person charged shall be in Form I.The person charged shall, unless otherwise ordered,appear in person before the Court as directed on thedate fixed for hearing of the proceeding, and shallcontinue to remain present during hearing till theproceeding is finally disposed of by order of theCourt.
(2) When action is instituted on petition, a copy ofthe petition along with the annexure and affidavitsshall be served upon the person charged.”
19. These Rules have been framed by the Supreme Court in
exercise of the powers vested in it under Section 23 of the
Contempt of Courts Act, 1971 and they have been notified with
the approval of Hon’ble the President of India.
20. In Pritam Pal v. High Court of Madhya Pradesh,
Jabalpur Through Registrar6, a 2 Judge Bench of this Court
held as follows:
“15. Prior to the Contempt of Courts Act, 1971, itwas held that the High Court has inherent power to
6 1992 (1) SCALE 416
18
deal with a contempt of itself summarily and toadopt its own procedure, provided that it gives a fairand reasonable opportunity to the contemnor todefend himself. But the procedure has now beenprescribed by Section 15 of the Act in exercise of thepowers conferred by Entry 14, List III of the SeventhSchedule of the Constitution. Though the contemptjurisdiction of the Supreme Court and the HighCourt can be regulated by legislation by appropriateLegislature under Entry 77 of List I and Entry 14 ofList III in exercise of which the Parliament hasenacted the Act of 1971, the contempt jurisdiction ofthe Supreme Court and the High Court is given aconstitutional foundation by declaring to be ‘Courtsof Record’ under Articles 129 and 215 of theConstitution and, therefore, the inherent power ofthe Supreme Court and the High Court cannot betaken away by any legislation short of constitutionalamendment. In fact, Section 22 of the Act lays downthat the provisions of this Act shall be in addition toand not in derogation of the provisions of any otherlaw relating to Contempt of Courts. It necessarilyfollows that the constitutional jurisdiction of theSupreme Court and the High Court under Articles129 and 215 cannot be curtailed by anything in theAct of 1971...”
21. In Delhi Judicial Service Association, Tis Hazari Court,
Delhi v. State of Gujarat and Ors.7 a threeJudge Bench of
this Court relied upon the judgment in the case of Sukhdev
Singh Sodhi (supra) and held that the Supreme Court had
inherent jurisdiction or power to punish for contempt of inferior
courts under Article 129 of the Constitution of India.
7 (1991) 4 SCC 406
19
22. A threeJudge Bench of this Court In Re: Vinay Chandra
Mishra8 discussed the law on this point in detail. The Court
while holding the respondent guilty for contempt had not only
sentenced him to simple imprisonment for a period of 6 weeks
which was suspended but also suspended his advocacy for a
period of 3 years, relying upon the powers vested in this Court
under Article 129 and 142 of the Constitution of India.
23. We may now refer to certain other provisions of
Constitution, Entry 77, Union List (List I) of VII Schedule reads
as follows:
“77. Constitution, organisation, jurisdiction and powersof the Supreme Court (including contempt of suchCourt), and the fees taken therein; persons entitled topractise before the Supreme Court.”
Entry 14, Concurrent List (List III of VII Schedule) reads as
follows :
“14. Contempt of court, but not including contempt ofthe Supreme Court.”
In exercise of the aforesaid powers the Contempt of Courts Act,
1971 was enacted by Parliament. Section 15 deals with
cognizance of criminal contempt and the opening portion of
8 (1995) 2 SCC 584
20
Section 15 clearly provides that the Supreme Court or the High
Courts may take action (i) suo motu (ii) on a motion moved by the
Advocate General in case of High Court or Attorney
General/Solicitor General in the case of Supreme Court and (iii)
on a petition by any other person with the consent in writing of
the Advocate General/Attorney General/Solicitor General as the
case may be. Section 17 lays down the procedure to be followed
when action is taken on a motion moved by the Advocate
General/Attorney General/Solicitor General or on the basis of
their consent and Section 17(2) does not deal with suo motu
contempt petitions. Section 17(2)(a) of the Contempt of Courts
Act will not apply to suo motu petitions because that deals with
the proceedings moved on a motion and not suo motu
proceedings. Section 17(2)(b) deals with contempt initiated on a
reference made by the subordinate court. It is only in these
cases that the notice is required to be issued along with a copy of
the motion. As far as suo motu petitions are concerned, in these
cases the only requirement of FormI which has been framed in
pursuance of Rule 6 of the Rules of this Court is that the brief
nature of the contempt has to be stated therein.
21
24. The correctness of the judgment in Vinay Chandra
Mishra’s case (supra) was considered by a Constitution Bench of
this Court in Supreme Court Bar Association v. Union of
India9. We shall be referring to certain portions of that judgment
in detail. That being a Constitution Bench judgment, is binding
and all other judgments which may have taken a view to the
contrary cannot be said to be correct. Before we deal with the
judgment itself, it would be appropriate to refer to certain
provisions of the Contempt of Courts Act, 1971. Section 2 is the
definition clause defining “contempt of court”, “civil contempt”,
“criminal contempt” and “High Court”. Sections 3 to 5 deal with
innocent publication, fair and accurate reporting of judicial
proceedings and fair criticism of judicial act, which do not
amount to contempt. Sections 10 and 11 deal with the powers of
the High Court to punish for contempt. Section 12(2) provides
that no court shall impose a sentence in excess of that specified
in subsection (1) of Section 12. Section 13 provides that no
court should impose a sentence under the Act for contempt
unless it is satisfied that the contempt is of such a nature that it
substantially interferes or tends to substantially interfere with
9 (1998) 4 SCC 409
22
the due course of justice. It also provides that truth can be
permitted to be raised as a valid defence if the court is satisfied
that the defence has been raised in the public interest and is a
bona fide defence. Section 14 deals with the powers of the
Supreme Court or the High Courts to deal with contempt in the
face of the Court. We have already dealt with Section 15 which
deals with cognizance of the criminal contempt other than
contempt in the face of the Court. Section 17 lays down the
procedure after cognizance. It is in the background of this Act
that we have to read and analyse the judgment of the
Constitution Bench.
25. The Constitution Bench referred to the provisions of Article
129 of the Constitution of India and also Entry 77 of List I of
Seventh Schedule and Entry 14 of List III of the Seventh
Schedule and, thereafter, held as follows:
“18. The language of Entry 77 of List I and Entry 14 ofList III of the Seventh Schedule demonstrates that thelegislative power of Parliament and of the StateLegislature extends to legislate with respect to mattersconnected with contempt of court by the Supreme Courtor the High Court, subject however, to the qualificationthat such legislation cannot denude, abrogate or nullify,the power of the Supreme Court to punish for contemptunder Article 129 or vest that power in some othercourt.”
(emphasis supplied)
23
26. This Court referring to Article 142 of the Constitution held
as follows:
“21. It is, thus, seen that the power of this Court inrespect of investigation or punishment of any contemptincluding contempt of itself, is expressly made “subjectto the provisions of any law made in this behalf byParliament” by Article 142(2). However, the power topunish for contempt being inherent in a court of record,it follows that no act of Parliament can take away thatinherent jurisdiction of the court of record to punish forcontempt and Parliament’s power of legislation on thesubject cannot, therefore, be so exercised as to stultifythe status and dignity of the Supreme Court and/or theHigh Courts, though such a legislation may serve as aguide for the determination of the nature of punishmentwhich this Court may impose in the case of establishedcontempt. Parliament has not enacted any law dealingwith the powers of the Supreme Court with regard toinvestigation and punishment of contempt of itself, (weshall refer to Section 15 of the Contempt of Courts Act,1971, later on) and this Court, therefore, exercises thepower to investigate and punish for contempt of itself byvirtue of the powers vested in it under Articles 129 and142(2) of the Constitution of India.”
27. This Court then made reference to the provision of the
Contempt of Courts Act, 1926, the Contempt of Courts Act, 1952
and the Contempt of Courts Act, 1971 and thereafter held as
follows:
“29. Section 10 of the 1971 Act like Section 2 of the1926 Act and Section 4 of the 1952 Act recognises thepower which a High Court already possesses as a courtof record for punishing for contempt of itself, whichjurisdiction has now the sanction of the Constitution
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also by virtue of Article 215. The Act, however, does notdeal with the powers of the Supreme Court to try orpunish a contemner for committing contempt of theSupreme Court or the courts subordinate to it and theconstitutional provision contained in Articles 142(2) and129 of the Constitution alone deal with the subject.”
28. It would also be pertinent to refer to the following
observations of the Constitution Bench:
“38. As already noticed, Parliament by virtue of Entry77 List I is competent to enact a law relating to thepowers of the Supreme Court with regard to contempt ofitself and such a law may prescribe the nature ofpunishment which may be imposed on a contemner byvirtue of the provisions of Article 129 read with Article142(2). Since, no such law has been enacted byParliament, the nature of punishment prescribed underthe Contempt of Courts Act, 1971 may act as a guide forthe Supreme Court but the extent of punishment asprescribed under that Act can apply only to the HighCourts, because the 1971 Act ipso facto does not dealwith the contempt jurisdiction of the Supreme Court,except that Section 15 of the Act prescribes proceduralmode for taking cognizance of criminal contempt by theSupreme Court also. Section 15, however, is not asubstantive provision conferring contempt jurisdiction.The judgment in Sukhdev Singh case (AIR 1954 SC186 : 1954 SCR 454) as regards the extent of “maximumpunishment” which can be imposed upon a contemnermust, therefore, be construed as dealing with thepowers of the High Courts only and not of this Court inthat behalf. We are, therefore, doubtful of the validity ofthe argument of the learned Solicitor General that theextent of punishment which the Supreme Court canimpose in exercise of its inherent powers to punish forcontempt of itself and/or of subordinate courts can alsobe only to the extent prescribed under the Contempt ofCourts Act, 1971. We, however, do not express any finalopinion on that question since that issue, strictlyspeaking, does not arise for our decision in this case.The question regarding the restriction or limitation onthe extent of punishment, which this Court may award
25
while exercising its contempt jurisdiction may bedecided in a proper case, when so raised.”
xxx xxx xxx
“40…Article 129 cannot take over the jurisdiction of theDisciplinary Committee of the Bar Council of the Stateor the Bar Council of India to punish an advocate bysuspending his licence, which punishment can only beimposed after a finding of “professional misconduct” isrecorded in the manner prescribed under the AdvocatesAct and the Rules framed thereunder.”
xxx xxx xxx
“43. The power of the Supreme Court to punish forcontempt of court, though quite wide, is yet limited andcannot be expanded to include the power to determinewhether an advocate is also guilty of “professionalmisconduct” in a summary manner, giving a goby tothe procedure prescribed under the Advocates Act. Thepower to do complete justice under Article 142 is in away, corrective power, which gives preference to equityover law but it cannot be used to deprive a professionallawyer of the due process contained in the AdvocatesAct, 1961 by suspending his licence to practice in asummary manner while dealing with a case of contemptof court.”
xxx xxx xxx
“57. In a given case, an advocate found guilty ofcommitting contempt of court may also be guilty ofcommitting “professional misconduct”, depending uponthe gravity or nature of his contumacious conduct, butthe two jurisdictions are separate and distinct andexercisable by different forums by following separateand distinct procedures. The power to punish anadvocate by suspending his licence or by removal of hisname from the roll of the State Bar Council for provenprofessional misconduct vests exclusively in thestatutory authorities created under the Advocates Act,1961, while the jurisdiction to punish him forcommitting contempt of court vests exclusively in thecourts.”
26
29. A careful analysis of the Constitution Bench decision leaves
no manner of doubt that Section 15 of the Act is not a
substantive provision conferring contempt jurisdiction. The
Constitution Bench finally left the question as to whether the
maximum sentence prescribed by the Act binds the Supreme
Court open. The observations made in Para 38 referred to above
clearly indicate that the Constitution Bench was of the view that
the punishment prescribed in the Act could only be a guideline
and nothing more. Certain observations made in this judgment
that the Court exceeded its jurisdiction in Vinay Chandra
Mishra’s case (supra) by taking away the right of practice for a
period of 3 years have to be read in the context that the Apex
Court held that Article 129 cannot take over the jurisdiction of
the Bar Council of the State or the Bar Council of India to punish
an advocate. These observations, in our opinion have to be read
with the other observations quoted hereinabove which clearly
show that the Constitution Bench held that “Parliament has not
enacted any law dealing with the powers of the Supreme Court
with regard to investigation and punishment of contempt of itself”.
The Court also held that Section 15 is not a substantive provision
27
conferring contempt jurisdiction and, therefore, is only a
procedural section especially in so far as suo moto contempts are
concerned. It is thus clear that the powers of the Supreme Court
to punish for contempt committed of itself is a power not subject
to the provisions of the Act. Therefore, the only requirement is to
follow a procedure which is just, fair and in accordance with the
rules framed by this Court.
30. As far as the observations made in the case of Pallav Sheth
v. Custodian & Ors.10 are concerned, this Court in that case was
only dealing with the question whether contempt can be initiated
after the limitation prescribed in the Contempt of Courts Act has
expired and the observations made therein have to be read in
that context only. Relevant portion of Para 30 of the Pallav
Seth’s case (supra) reads as follows:
“30. There can be no doubt that both this Court andHigh Courts are Courts of Records and the Constitutionhas given them the powers to punish for contempt. Thedecisions of this Court clearly show that this powercannot be abrogated or stultified. But if the power underArticle 129 and Article 215 is absolute can there be anylegislation indicating the manner and to the extent thatthe power can be exercised? If there is any provision ofthe law which stultifies or abrogates the power underArticle 129 and/or Article 215 there can be little doubtthat such law should not be regarded as having beenvalidly enacted. It, however, appears to us that providingfor the quantum of punishment ow what may or may not
10 2001 (7) SCC 549
28
be regarded as acts of contempt or even providing for aperiod of limitation for initiating proceedings for contemptcannot be taken to be a provision which abrogates orstultifies the contempt jurisdiction under Article 129 orArticle 215 of the Constitution.”
The aforesaid finding clearly indicates that the Court held that
any law which stultifies or abrogates the power of the Supreme
Court under Article 129 of the Constitution or of the High Courts
under Article 215 of the Constitution, could not be said to be
validly enacted. It however, went on to hold that providing the
quantum of punishment or a period of limitation would not mean
that the powers of the Court under Article 129 have been
stultified or abrogated. We are not going into the correctness or
otherwise of this judgment but it is clear that this judgment only
dealt with the issue whether the Parliament could fix a period of
limitation to initiate the proceedings under the Act. Without
commenting one way or the other on Pallav Seth’s case (supra)
it is clear that the same has not dealt with the powers of this
Court to issue suo motu notice of contempt.
31. In view of the above discussion we are clearly of the view
that the powers of the Supreme Court to initiate contempt are not
in any manner limited by the provisions of the Act. This Court is
29
vested with the constitutional powers to deal with the contempt.
Section 15 is not the source of the power to issue notice for
contempt. It only provides the procedure in which such
contempt is to be initiated and this procedure provides that there
are three ways of initiating a contempt – (i) suo motu (ii) on the
motion by the Advocate General/Attorney General/Solicitor
General and (iii) on the basis of a petition filed by any other
person with the consent in writing of the Advocate
General/Attorney General/Solicitor General. As far as suo motu
petitions are concerned, there is no requirement for taking
consent of anybody because the Court is exercising its inherent
powers to issue notice for contempt. This is not only clear from
the provisions of the Act but also clear from the Rules laid down
by this Court.
Objections as to issuance of notice
32. The alleged contemnors have filed applications for discharge
of notices issued to them. Vide our order dated 09.12.2019 we
had made it clear that we are dealing with both the applications
and the main petition together. The main ground for discharge is
30
that notice sent was not in accordance with the provisions of the
Contempt of Courts Act. This Court, as mentioned above, has its
own Rules and Form I lays down the manner in which notice is to
be issued. The same is as follows:
“FORM I
NOTICE TO A PERSON CHARGED WITH CONTEMPTOF COURT
(See rule 6)
IN THE SUPREME COURT OF INDIA
(Original Jurisdiction)
Whereas your attendance is necessary to answer acharge of Contempt of Court by (here briefly statenature of the contempt).
You are hereby required to appear in person (or byAdvocate if the Court has so ordered) before this Courtat New Delhi on the ………………day of…………….20…at10.30 o’clock in the forenoon.
You shall attend the Court in person* on the…………day of ………….20……, and shall continue to attend theCourt on all days thereafter to which the case againstyou stands adjourned and until final orders are passedon the charge against you.
Herein fail not.
Dated this …………. day of…………20….
(SEAL)
REGISTRAR
*To be omitted where the person charged is allowed orordered to appear by Advocate.”
The only requirement of the Rules and the Form is that the brief
nature of the contempt is to be stated in the Form. There is no
31
requirement of giving all the documents with the Form. A
perusal of the order whereby contempt proceedings were initiated
clearly shows that the grounds for initiating contempt were
reflected in the order itself. This order was admittedly sent to the
alleged contemnors. Therefore, in our opinion, the notice was
strictly in accordance with Form1, which only requires that the
notice should briefly state the nature of the contempt. Once the
order was attached to the notice that became part and parcel of
the notice itself. In any event, nonsupply of any document
would only be an irregularity and not an illegality going to the
root of the matter. The only documents which are the basis for
issuing notice of contempt are the complaints sent by Shri Vijay
Kurle and Shri Rashid Khan Pathan which were annexed to the
letter of the Bombay Bar Association and Bombay Incorporated
Law Society. The letters of the Bombay Bar Association and
Bombay Incorporated Law Society along with all the annexures
attached to the said letter have been supplied to the alleged
contemnors and they were permitted to file additional replies
after receiving all these documents. As mentioned above, this
Court had clarified that the action against alleged contemnors is
being restricted to the allegations made in the two complaints by
32
Shri Vijay Kurle and Shri Rashid Khan Pathan of which they are
admittedly the authors. Since this Court has not relied upon any
of the other documents, we do not see how any prejudice has
been caused to the alleged contemnors by the nonsupply of the
documents along with the notice. As per the Rules of this Court,
the notice was only to briefly state nature of the contempt and in
the order itself reference has been made to the complaints of Shri
Vijay Kurle and Shri Rashid Khan Pathan. We accordingly see no
merit in the argument of the alleged contemnors that the notice
was not in consonance with the Rules of this Court or in
consonance with the principles of natural justice or fair
procedure. Accordingly, we reject the contention and hold that
the notice was a legal and valid notice. Consequently, the
applications for discharge of notice are also dismissed.
Whether these proceedings can be termed suo motu?
33. The next contention of the alleged contemnors is that the
proceedings in the present case are not suo motu proceedings
and, therefore, should not have been entertained without the
consent of the Attorney General or Solicitor General. The alleged
contemnors have placed strong reliance on the judgment of this
33
Court in the case of Biman Basu v. Kallol Guha Thakurta &
Another.11 The issue in that case was whether the High Court
had issued notice of contempt suo motu. In our view, that
judgment has no applicability here. The facts of that case were
that a contempt petition was filed by the respondents (in the
Supreme Court) alleging that the appellant (in the Supreme
Court) had made deliberate and wilful derogatory, defamatory
and filthy statements against a Judge of the Calcutta High Court.
The Division Bench before whom the matter was placed passed
the following order:
“7. Heard.
After hearing Mr. Ali, learned counsel moving thispetition and perusing the issue of Bartaman dated 5102003, we are of the view that a rule be issued. Rule ismade returnable on 7112003.
This Court, however, makes it clear that the recordsof this case may be placed before the Hon’ble the ChiefJustice for assignment of this rule for hearing beforeany Bench that the Hon’ble the Chief Justice may thinkfit and proper.”
The main issue which arose before this Court was whether the
contempt proceedings were initiated against the appellant therein
suo motu by the High Court or by the respondents. Keeping in
11 (2010) 8 SCC 673
34
view the language of the order passed in the case it was held that
this was not a case where the Court had taken suo motu action
and therefore relying upon the judgments of this Court in the
case of P.N. Duda (supra) and in Bal Thackrey v. Harish
Pimpalkhute and Ors.12 it was held that the contempt petition
could not have been filed without the consent of the Advocate
General. The Court further held that from the record it was
apparent that the respondent was always shown as the petitioner
in the contempt petition and, therefore, there was nothing which
indicated that the proceedings had been initiated suo motu.
34. As far as the present case is concerned, the order passed
by this Court clearly shows that this Court after taking note of
the letter sent by the President of the Bombay Bar Association
and the President of the Bombay Incorporated Law Society, the
annexures attached to this letter and after specifically noting the
prayers made in the complaints of Shri Vijay Kurle and Shri
Rashid Khan Pathan along with the allegations made in both the
complaints was of the view that the allegations levelled against
the Members of the Bench were scandalous in nature and
therefore, notice was issued to the alleged contemnors and12 2005 (1) SCC 254
35
against Shri Nedumpara who has since been discharged. The
alleged contemnors are basically urging that the order does not
use the word “suo motu”. In our view, that would not make any
difference. The relevant portion of the order dated 27.03.2019
reads as follows:
“Given the two complaints filed, it is clear thatscandalous allegations have been made against themembers of this Bench. We, therefore, issue notice ofcontempt to (1) Shri Vijay Kurle; (2) Shri Rashid KhanPathan; (3) Shri Nilesh Ojha and (4) Shri MathewsNedumpara to explain as to why they should not bepunished for criminal contempt of the Supreme Court ofIndia, returnable within two weeks from today.”
When we read the aforesaid order as a whole, it is more than
obvious that the Court itself took cognizance of the complaints
and the documents thereto as well as the allegations levelled
therein.
35. Contempt is basically a matter between the Court and the
contemnor. Any person can inform the Court of the contempt
committed. If he is to be arrayed as a party then the contempt
will be in his name but when the Court does not array him as a
party, the Court can on the basis of the information itself take
suo motu notice of the contempt. In the present case, the Court
on the basis of the information itself took suo motu note of the
36
contempt and the matter was then placed before Hon’ble the
Chief Justice for listing it before the appropriate Bench. The
matter has been listed as a suo motu contempt petition right from
the beginning and dealt with as such.
36. In Biman Basu’s case (supra) the Court after referring to
earlier decisions of this Court held as follows:
“25. It is true that any person may move the High Courtfor initiating proceedings for criminal contempt byplacing the facts constituting the commission ofcriminal contempt to the notice of the Court. But oncethose facts are placed before the Court, it becomes amatter between the Court and the contemner. But suchperson filing an application or petition does not becomea complainant or petitioner in the proceeding. His dutyends with the facts being placed before the Court. TheCourt may in appropriate cases in its discretion requirethe private party or litigant moving the Court to renderassistance during the course of the proceedings...”
xxx xxx xxx
“28. In the case in hand, it is evident from the record,the respondents were continued to be shown as thepetitioners in the contempt case before the High Courtand participated throughout as if they were prosecutingthe appellant. There is no order reflecting that the Courthaving taken note of the information made before it,initiated suo motu proceedings on the basis of suchinformation furnished and required the respondentsonly to assist the Court till the disposal of the matter.On the contrary, the respondents are shown as thepetitioners in the contempt case before the High Court.It is thus clear, it is the respondents who initiated theproceedings and continued the same but without thewritten consent of the Advocate General as is requiredin law. The proceedings, therefore, were clearly notmaintainable.”
37
37. As pointed out above, in the present case the Bombay Bar
Association and the Bombay Incorporated Law Society have never
been shown as petitioners. The letter sent by the President of the
Bombay Bar Association and the President of the Bombay
Incorporated Law Society is not addressed to this Court to initiate
contempt proceedings. The letters were addressed to the
President of India, the Chief Justice of India and the Chief
Justice of the High Court of Bombay and the prayer made therein
was that the complaints by the Indian Bar Association and
Human Rights Security Council should be rejected. There is no
prayer for initiating contempt proceedings. These letters were
placed in the office of the Judges of this Court and after taking
note of the averments made therein they decided to issue notice
of contempt. This is nothing but a suo motu action on reading
the complaints and the letter of the President of the Bombay Bar
Association and the President of the Bombay Incorporated Law
Society and hence this cannot be termed to be a contempt
petition requiring the consent of the Attorney General.
Judge in their own Cause
38
38. We shall now deal with the arguments of the alleged
contemnors that the Bench could not have issued the notice
without the matter being placed before it and further that this
amounted to them acting as judges in their own cause. A
number of judgments have been cited in this regard but we need
not refer to all of them. Strong reliance is placed by the alleged
contemnors on the judgment of Justice Ranganathan in P.N.
Duda’s case (supra) that the practice being followed by the Delhi
High Court should be followed in this Court also. We are unable
to accept this contention and find no merit in the same. As
already observed above, those observations were in the nature of
obiter and the said observations cannot override the statutory
rules.
39. It is true that the Chief Justice is the master of the roster
and in normal course a matter can be listed before a Bench only
on the basis of orders issued by the Chief Justice. However, here
the situation is totally different. The Bench was already dealing
with Suo Motu Contempt Petition (Crl.) No. 1 of 2019. The letter
of the President of the Bombay Bar Association and the President
of the Bombay Incorporated Law Society was placed before the
39
Bench. Along with this letter the complaints filed by Shri Vijay
Kurle and Shri Rashid Khan Pathan were annexed. The Bench
took suo motu notice of the allegations made in these two
complaints and directed that contempt proceedings be initiated.
Thereafter, in accordance with the principles of natural justice
and also the principle that the Chief Justice is the master of the
roster the Bench directed that the matter may be listed before the
Chief Justice for placing it before the appropriate Bench. The
Chief Justice, though no doubt, master of the roster, is first
amongst the equals and every Judge of the Supreme Court is as
much part of this Court as Hon’ble the Chief Justice. The Judges
of this Court can exercise their powers under Article 129 of the
Constitution which is a constitutional power untrammelled by
any rules or convention to the contrary. Even so, the Bench in
deference to the principle of master of the roster, after taking
cognizance of the scandalous allegations made in the complaints
of the alleged contemnors and issuing notice to them directed
that the matter be placed before Hon’ble the Chief Justice for
listing before an appropriate Bench. This, in our view, is the
proper procedure. If an article, letter or any writing or even
something visual circulating in electronic, print or social media or
40
in any other forum is brought to the notice of any Judge of this
Court which prima facie shows that the allegation is
contemptuous or scandalises the court then that Judge can
definitely issue notice and thereafter place it before Hon’ble the
Chief Justice for listing it before an appropriate Bench.
40. The alleged contemnors have relied upon the judgment in
Divine Retreat Centre v. State of Kerala & Others.13 wherein
it was observed that individual writing should be placed before
the Chief Justice as to the proposed action on such petitions. It
was held:
“71. …The individual letters, if any, addressed to aparticular judge are required to be placed before theChief Justice for consideration as to the proposed actionon such petitions. Each Judge cannot decide for himselfas to what communication should be entertained forsetting the law in motion be it in PIL or in anyjurisdiction.”
At the outset, we may note that these observations were made in
the context of public interest litigations and not for contempt
petitions and the jurisdiction of this Court to punish for
contempt of itself is a very wide jurisdiction. Furthermore, it is
not as if the letter were addressed to the Members of the Bench.
13 (2008) 3 SCC 542
41
As observed above, the letter sent by the President of the Bombay
Bar Association and the President of the Bombay Incorporated
Law Society was addressed to the President of India, the Chief
Justice of this Court, and the Chief Justice of the High Court of
Bombay. Presumably, it must have been the Office of the Chief
Justice which sent the letters to the Bench. In any event, that
will not have any bearing on this case. We are clearly of the view
that the Bench was fully justified in taking note of the letter sent
by the Bombay Bar Association and the President of the Bombay
Incorporated Law Society and the documents annexed thereto
which included the complaints sent by Shri Vijay Kurle and Shri
Rashid Khan Pathan. After issuing notice the bench directed
that the matter be placed before Hon’ble the Chief Justice for
placing before the appropriate bench. This is valid and proper
procedure and the bench did not act as judge in their own cause.
Only notice was issued and thereafter the matter was assigned to
this bench.
Source of Information
41. Another argument raised is that the Bench should have
disclosed from where it got the information. The alleged
42
contemnors have cited a number of decisions in this regard.
Dealing with the issue of disclosure of source of information in C.
K. Daphtary’s case (supra) this Court held as follows:
“79….The first respondent said that the source ofinformation had not been disclosed. Para 2 of the petitionrefers to proceedings in this Court and it was notnecessary to have disclosed any further source ofinformation. As far as paras 3 and 4 are concerned, thefirst respondent admits that he approached members ofParliament to file a motion of impeachment against Mr.Justice Shah. Calling this a “campaign” is only todescribe in a word his activities. Whether it should bestrictly called a campaign is beside the point. Theessential facts mentioned in Para 5 are admitted by thefirst respondent. Therefore the fact that the source ofinformation was not disclosed does not debar us fromtaking the facts into consideration. The last sentence ofPara 5 viz., “The said pamphlet was, as the petitionersbelieve, sold or offered for sale to the public byRespondent No. 3” is a matter of belief. Para 6 containsinferences and submissions in respect of which there wasno question of disclosing the source of information. Para7 contains extracts from the booklet or the pamphletwhich was attached as an annexure. In view of thedocument having been attached it was not necessary thatthe source of information regarding Para 7 should havebeen disclosed. The allegations in Para 9 of the petitionare supported by an affidavit of Mr. B.P. Singh, Advocate,who has verified that the contents in his affidavit are trueto his knowledge….”
42. We fail to understand how Shri Vijay Kurle can urge that
the source of information should be disclosed. His complaint is
addressed amongst all others to Judges of this Court which
43
obviously includes the two Judges who are members of the
Bench.
43. In the instant case, the disclosure of the information is
made in the order itself where it is clearly recorded that the
action has been taken on the basis of the letter sent by the
President of the Bombay Bar Association and the President of the
Bombay Incorporated Law Society to the President of India and
the Chief Justice of India in response to the complaints made by
the alleged contemnors. The complaints of Shri Vijay Kurle and
Shri Rashid Khan Pathan were also attached with the letters and
after taking note not only of the letter of the President of the
Bombay Bar Association and the President of the Bombay
Incorporated Law Society but also the prayer clauses of both the
complaints sent by the alleged contemnors and the scandalous
allegations made in the complaints, the notice was issued. The
source of information is the letter sent by the Bombay Bar
Association and the President of the Bombay Incorporated Law
Society, as is apparent from the order initiating contempt
proceedings. Therefore, we find no merit in this plea.
44
Freedom to criticise
44. Before dealing with these allegations it would be apposite to
set out the law with regard to fair criticism of the judgments of
the Court. There can be no manner of doubt that every citizen is
entitled to criticise the judgments of this Court and Article 19 of
the Constitution which guarantees the right of free speech to
every citizen of the country must be given the exalted status
which it deserves. However, at the same time, we must
remember that clause (2) of Article 19 of the Constitution also
makes it clear that the right to freedom of speech is subject to
existing laws for imposing reasonable restrictions as far as such
law relates to contempt of Court. This right of freedom of speech
is made subject to the laws of contempt which would not only
include Contempt of Courts Act but also the powers of the
Supreme Court to punish for contempt under Article 129 and
142(2) of the Constitution. Similar powers are vested with the
High Courts.
45. The purpose of having a law of contempt is not to prevent
fair criticism but to ensure that the respect and confidence which
the people of this country repose in the judicial system is not
45
undermined in any manner whatsoever. If the confidence of the
citizenry in the institution of justice is shattered then not only
the judiciary, but democracy itself will be under threat.
Contempt powers have been very sparingly used by the Courts
and rightly so. The shoulders of this Court are broad enough to
withstand criticism, even criticism which may transcend the
parameters of fair criticism. However, if the criticism is made in
a concerted manner to lower the majesty of the institution of the
Courts and with a view to tarnish the image, not only of the
Judges, but also the Courts, then if such attempts are not
checked the results will be disastrous. Section 5 of the Contempt
of Courts Act itself provides that publishing of any fair comment
on the merits of any case which has been heard and finally
decided does not amount to contempt.
46. In Dr. D.C. Saxena v. Hon’ble the Chief Justice of India14
after referring to a large number of judgments to which we need
not refer, this Court held that though freedom of speech is an
essential part of democracy, it is equally necessary for society to
regulate such freedom of speech or expression in terms of the
exceptions to Article 19 of the Constitution. Bonafide criticism of
14 (1996) 5 SCC 216
46
any institution including the judiciary is always welcome.
Healthy and constructive criticism of the judgments cannot
amount to contempt of Court. However, if the allegations levelled
go beyond the ambit of criticism and scandalise the Court then
there can be no manner of doubt that such utterances or written
words would amount to contempt of Court. This Court In Re:
Arundhati Roy15 while dealing with Section 2 of the Act held as
follows:
“28. As already held, fair criticism of the conduct of aJudge, the institution of the judiciary and its functioningmay not amount to contempt if it is made in good faithand in public interest. To ascertain the good faith and thepublic interest, the courts have to see all the surroundingcircumstances including the person responsible forcomments, his knowledge in the field regarding which thecomments are made and the intended purpose sought tobe achieved. All citizens cannot be permitted to commentupon the conduct of the courts in the name of faircriticism which, if not checked, would destroy theinstitution itself…”
47. The alleged contemnors have relied on certain observations
made in the case of P.N. Duda (supra). That was a case where a
former Judge of the High Court, who was Minister for Law,
Justice and Company Affairs in the Central Government,
15 (2002) 3 SCC 343
47
criticised the functioning of the Supreme Court and one of the
principal criticisms of this Court was that it was comprised of
Judges belonging to the upper echelons of society and therefore,
the Court was more sympathetic to industrialists and
representatives of elitist culture etc. The Court while discharging
the notice held that the speech of the Minister must be read in
proper perspective. However, this Court observed that the
Minister would have been better advised to avoid certain portions
of the speech and held that the speech did not amount to
interference with the administration of justice or bringing the
administration of justice into disrepute. Dealing with the
aforesaid observations in Dr. D.C. Saxena’s case (supra) this
Court held as follows:
"34. In P.N. Duda v. P. Shiv Shankar [(1988) 3 SCC 167 :1988 SCC (Cri) 589 : AIR 1988 SC 1208] this Court hadheld that administration of justice and judges are open topublic criticism and public scrutiny. Judges have theiraccountability to the society and their accountabilitymust be judged by the conscience and oath to their office,i.e., to defend and uphold the Constitution and the lawswithout fear and favour. Thus the judges must do, in thelight given to them to determine, what is right. Anycriticism about the judicial system or the judges whichhampers the administration of justice or which erodesthe faith in the objective approach of the judges andbrings administration of justice to ridicule must beprevented. The contempt of court proceedings arise out ofthat attempt. Judgments can be criticised. Motives to thejudges need not be attributed. It brings the
48
administration of justice into disrepute. Faith in theadministration of justice is one of the pillars on whichdemocratic institution functions and sustains. In the freemarketplace of ideas criticism about the judicial systemor judges should be welcome so long as such criticismdoes not impair or hamper the administration of justice.This is how the courts should exercise the powers vestedin them and judges to punish a person for an allegedcontempt by taking notice of the contempt suo motu or atthe behest of the litigant or a lawyer. In that case thespeech of the Law Minister in a Seminar organised by theBar Council and the offending portions therein were heldnot contemptuous and punishable under the Act. In ademocracy judges and courts alike are, therefore, subjectto criticism and if reasonable argument or criticism inrespectful language and tempered with moderation isoffered against any judicial act as contrary to law orpublic good, no court would treat criticism as a contemptof court."
48. There can be no manner of doubt that any citizen of the
country can criticise the judgments delivered by any Court
including this Court. However, no party has the right to attribute
motives to a Judge or to question the bona fides of the Judge or
to raise questions with regard to the competence of the Judge.
Judges are part and parcel of the justice delivery system. By and
large Judges are reluctant to take action under contempt laws
when a personal attack is made on them. However, when there
is a concerted attack by members of the Bar who profess to be
the members of an organization having a large following, then the
Court cannot shut its eyes to the slanderous and scandalous
49
allegations made. If such allegations which have not only been
communicated to the President of India and the Chief Justice of
India, but also widely circulated on social media are permitted to
remain unchallenged then the public will lose faith not only in
those particular Judges but also in the entire justice delivery
system and this definitely affects the majesty of law.
49. Though the alleged contemnors claim that they are not
expressing any solidarity with Shri Mathews Nedumpara nor do
they have anything personal against Justice R.F. Nariman, the
entire reading of the complaints shows a totally different picture.
When we read both the complaints together it is obvious that the
alleged contemnors are fighting a proxy battle for Shri
Nedumpara. They are raking up certain issues which could have
been raised only by Shri Nedumpara and not by the alleged
contemnors.
50. Both the complaints are exfacie contemptuous. Highly
scurrilous and scandalous allegations have been levelled against
the two judges of this Court. In our view, the entire contents of
the complaints amount to contempt. Since both the complaints
run into more than 250 pages it is not possible to quote the
50
entire complaints and we are dealing with some of the more
scandalous allegations levelled in the said complaints. We have
grouped certain allegations together.
1 st Complaint dt.20.03.2019 by Shri Vijay Kurle
51. On pages 4951 of the 1st complaint, the following
allegations have been made:
“III) CHARGE # : PERSONAL BIAS PROCEEDINGVITIATED.
The another illegality is regarding conflict of interest &violation of law laid down by Hon’ble Supreme Court inthe case of State of Punjab Vs. Davinder Pal SinghBhullar & Ors. (2011) 14 SCC 770.
That since last 2 years, Advocate Nedumpatra isposting articles against Advocate Fali S. Nariman. Healso filed Writ Petition before Delhi High Court being W.P.(C) No.2019 of 2019, where he raised the issue ofAdvocate Fali Nariman practising in Supreme Courtwhere his son Rohington Fali Nariman is a Judge.
Under these circumstances having direct conflict ofinterest and having prejudice with Advocate Nedumpara,Justice Rohington Fali Nariman was disqualified to hearthe case and he should have recused himself from thecases where Advocate Nedumpara is appearing.
xxx xxx xxx
But instead of maintaining dignity & sobriety of theSupreme Court the Respondent Judge Rohington FaliNariman heard the case and brought the dignity &majesty of Hon’ble Supreme Court into disrepute.”
The alleged contemnors have alleged that Shri Nedumpara was
posting articles against Shri F. S. Nariman, a senior advocate
51
who happens to be the father of Justice R. F. Nariman. It is
alleged that therefore there was a direct conflict of interest and
Justice R.F Nariman was disqualified from hearing the case
involving Shri Nedumpara. We fail to see how there is any
conflict of interest. Shri F.S. Nariman, Senior Advocate is a
doyen of the Indian Bar and a legal luminary in his own right.
Justice R.F. Nariman is his son and a Judge of this Court. That
however would not create any conflict of interest between Justice
Nariman and Shri Nedumpara because Shri F.S. Nariman and
Justice R. F. Nariman are two different entities. The purported
article has not been placed on record. In any event, it was Shri
Nedumpara who could have raised this defence before the Bench
and he, in fact, has filed an affidavit of apology accepting that he
has committed contempt. The alleged contemnors have
unnecessarily and without any reason questioned the impartiality
of Judges of this Court.
52. As far as the allegations made at Page 55 of the first
complaint are concerned, we find that the Shri Vijay Kurle could
have said what he wanted to say in the first paragraph quoted
hereinabove but what is totally unacceptable is the second part of
the paragraph where Shri Vijay Kurle assumes the role of a judge
52
and says that “The only irresistible conclusion that can be drawn
is that there were no malafides on the part of Advocate
Nedumpara and if it were put in notice calling explanation in open
Court then would have exposed Justice Nariman in front of
advocates and public and that’s why a very strange and different
method is adopted by Justice Nariman by pronouncing conviction
of advocate.” This shows that he is fighting a proxy battle for Mr.
Nedumpara. What is even more objectionable is the language
used thereafter that if Shri Nedumpara was put to notice then it
would have exposed Justice Nariman in front of advocates and
public. This allegation also is a scandalous allegation. We are
not looking into the merits of the decisions. We cannot comment
on the merits of the decisions of the Bench headed by Justice
Nariman but we must note that after holding Shri Nedumpara
guilty he was heard on the point of sentence and thereafter he
filed an affidavit which reads as follows:
“ AFFIDAVIT
I, Mathews J. Nedumpara, Advocate, aged 60 years,Indian Inhabitant, residing at Harbour Heights, “W”Wing, 12F, 12th Floor, Sassoon Docks, Colaba, Mumbai400 005, now in Delhi, do hereby swear and state asfollows:
53
1. A Bench of this Hon’ble Court comprising Hon’ble ShriJustice Rohinton F. Nariman and Hon’ble Shri JusticeVineet Saran, by judgment and order dated 12th March,2019, was pleased to hold me guilty for contempt in theface of the Court and list the case for hearing on thequestion of punishment.
2. I happened to mention the name of Shri Fali S.Nariman to buttress my proposition that even legendaryShri Fali Nariman is of the view that the seniority of alawyer should be reckoned from the date of his enrolmentand nothing else. However, I was misunderstood. I alongwith some office bearers of the National Lawyers’Campaign for Judicial Transparency and Reforms haveinstituted Writ Petition No.2199/2019 in the High Courtof Delhi for a declaration that the Explanation to Rule 6of the Bar Council of India Rules is void inasmuch as itexplains that the word “Court” does not mean the entireCourt, but the particular Court in which the relative of alawyer is a Judge. I instituted the said petition only toraise the concern many lawyers share with me regardingthe immediate relatives practising in the very same Courtwhere their relative is a Judge. In retrospection I realizethat it was an error on my part to have arrayed Shri FaliNariman as a Respondent to the said petition. I regret thesame; no words can sufficiently explain my contrition andregret. I also in retrospection realize that I have erredeven during the conduct of the above case before thisHon’ble Court and I probably would not have kept uptowhat is expected of me as a lawyer in the Bar for 35 yearsand crossed the age of 60. I feel sorry, express mycontrition and tender my unconditional apology, whilemaintaining that some of the accusations levelled againstme in the judgment dated 12th March, 2019 areabsolutely wrong, which are, ex facie, black and white,and as incontrovertible as day and night.
3. The apology tendered by me hereinabove be acceptedand I may be purged of the contempt.
Solemnly sworn at Delhi Sd/ this 27th day of March, 2019 (Mathews J. Nedumpara)”
53. A close perusal of the affidavit filed by Mr. Nedumpara
shows that in retrospect Shri Nedumpara felt that it was an error
54
on his part to have arrayed Shri F.S. Nariman as respondent in
the writ petition filed by him in the Delhi High Court. He states
that he regrets the same and no words can sufficiently explain
his contrition and regret. He also states that he realises that he
had erred during the conduct of the case before this Court. The
two complaints filed by Shri Vijay Kurle and Shri Rashid Khan
Pathan were sent even before Shri Nedumpara had been heard on
the issue of sentence. What the complainants alleged in the
complaints is disproved from the apology of Shri Nedumpara
submitted to the Court. This unqualified apology of Shri
Nedumpara was accepted by the Court. In this background we
are unable to find any plausible explanation for Shri Vijay Kurle
to have used the words “exposed Justice Nariman in front of
advocates and public”. No lawyer can threaten to expose a judge
in front of the advocates and public on the basis of some vague
and reckless allegations. This language is highly disrespectful
and scandalises the Court and, therefore, amounts to committing
contempt of the Court.
54. On Page 60 of the first complaint Shri Vijay Kurle has stated
as follows:
55
“The threats given by Justice Nariman to AdvocateNedumpara on 5th March, as published in “Bar & Bench”is itself an offence of Contempt on the part of JusticeRohington Fali Nariman.”
55. What has been published in Bar & Bench has not been
placed on record. Shri Vijay Kurle has filed a large number of
documents but has not stated on what basis he has alleged that
Shri Nedumpara was threatened by Justice Nariman.
Admonishment by a Judge cannot be said to be a threat. Since
the alleged contemnors have not placed any material on record to
show how Justice Nariman threatened Shri Nedumpara, this
itself amounts to making a false accusation against a Judge.
Shri Nedumpara in his affidavit has not made any reference to
any threats given to him by any Member of the Bench. This
clearly shows that the allegation made by Shri Vijay Kurle is
false.
56. It is alleged by Shri Vijay Kurle, that Justice Nariman had
“misused his power to use material outside the court record and
received by personal knowledge without disclosing its source” and
therefore, his action was against earlier judgments of this Court
and amounted to contempt of this Court. Various judgments
have been cited but most of them are not at all relevant to the
56
case in hand. Furthermore, even if he wanted to criticise the
judgment on this ground, Shri Vijay Kurle could have used
temperate language but what has been said at Page 69 of the first
letter is highly contemptuous. The said allegations read as
follows:
“The malafides of Justice Rohington Fali Nariman arewrit large as can be seen from the fact that the materialsrelied by him in para 3,4,5,6,7,8 are totally the personalwork of Justice Rohington Nariman and as can be easilyinferred. It is clear that the most of the material suppliedis from Justice S.J. Kathawala of Bombay High Courtwho in turn is Rohington’s close and rival of Adv.Nedumpara.”
57. A judge may be right or wrong and a party may criticise the
judgment on any ground. However, in the allegations quoted
hereinabove various serious charges of malafide have been
levelled against a sitting Judge of this Court. Further, it is stated
that material relied upon by Justice Nariman was supplied by
Justice Kathawala of Bombay High Court, who is close to Justice
Nariman and also happens to be a rival of Shri Nedumpara. Shri
Vijay Kurle has failed to place any material on record to show
that the material relied upon by Justice Nariman was supplied by
Justice Kathawala. In fact, a perusal of the material shows that
the materials relied upon were a matter of public record and were
part of orders passed in cases that Shri Nedumpara appeared in
57
or part of petitions filed by Shri Nedumpara himself. There is not
an iota of evidence on record to show that Justice Kathawala is
close to Justice Nariman. We also fail to understand on what
basis the Shri Vijay Kurle has stated that Justice Kathawala is a
rival of Shri Nedumpara. There is no question of rivalry between
the Bar and the Bench or between a Judge and a lawyer. Justice
Nariman in his judgment has relied upon the orders passed by
the Bombay High Court in various cases. These are all public
documents and we fail to understand how the alleged
contemnors assumed that these documents were supplied by
Justice Kathawala.
58. Some allegations made on Pages 23 of the first complaint
are as follows:
“CHARGE 2 # Lack of basic knowledge to interpret theratio decidendi of any case law.
xxx xxx xxx
CHARGE 3 # Don’t know the basic law of criminaljurisprudence and basic law of evidence and acted indenial of whole basis of indian constitutional.”
59. Similarly, the allegations made at Pages 7172 of the first
complaint are as follows:
58
“Hence Justice Rohington Fali Nariman by placingreliance on the Notice in Contempt proceeding, andmaking it as a basis to draw conclusion of conduct of anadvocate knowing fully well that the said matter is stillsubjudice before subordinate court, have violatedFundamental rights of Advocate Nedumpara and actedagainst the Constitutional mandate and thereby breachedthe oath taken as a Supreme Court Judge and isunbecoming of a Judicial officers.
Therefore reliance placed by Justice Rohington FaliNariman on show cause Contempt notice is illegal andshows his lack of knowledge.
Hence the onesided blanket reliance by some illiterateJudges having halfbacked knowledge of law will brokethe fabric of cardinal principles of criminal and civiljurisprudence.
VI) CONSPIRACY TO DISTROY IMAGE AND KEEPADVOCATE AWAY FROM HIS CLIENTS CAUSINGSERIOUS PREJUDICES TO THEIR SUBJUDICE CAUSEEXFACE PROVED:
In the present case Justice Nariman is being aggrieved byPetitions filed by Nedumpara against his father FaliNariman and also against his close Justice Kathawallaand therefore had taken reference of different irrelevantcases and inadmissible evidences. The object of theJustice Nariman as stated eatlier, is not really to cleanseand purify the legal profession, or to protect dignity andmajesty of justice but to silence the advocates whoappear for his opponents, so that litigation could be wonon a different turf.”
As far as these allegations are concerned, the Bench was only
referring to various cases where action had been initiated against
Shri Nedumpara and noted that he is in a “habit of terrorising
Tribunal members and using intemperate language to achieve his
ends before several Judges of the Bombay High Court”. Shri
59
Nedumpara filed a discharge application in these proceedings
stating that he has nothing to do with these complaints.
Therefore, how can the alleged contemnors now raise issues
which were never raised by Shri Nedumpara. On Page 71 of the
first complaint it has been alleged that by placing reliance on the
notice issued in contempt proceedings the learned Judge has
violated fundamental rights of Shri Nedumpara and therefore
breached his oath taken as a Judge of this Court.
60. The allegations made at Page 72 of the first letter are highly
derogatory and scandalous. The Bench placed reliance on a
show cause notice in reference to Shri Nedumpara to show that
the “advocate has embarked on a course of conduct which is
calculated to defeat the administration of justice in this country”.
This in no way reflects lack of knowledge. The language used in
the latter portion quoted hereinabove indicating that Justice
Nariman is an illiterate Judge having half baked knowledge of law
is a scandalous and scurrilous allegation which definitely
amounts to contempt of Court.
61. In Charge VI at Page 72, Shri Vijay Kurle has alleged that
Justice Nariman wanted to keep advocates away from his Court.
60
62. The alleged contemnors by saying that the object of Justice
Nariman while taking action against Shri Nedumpara was “not
really to cleanse or purify legal profession or to protect the dignity
and majesty of justice but to silence the advocates who appear for
his opponents, so that the litigation could be won on a different
turf” have made allegations that are scandalous and challenge
the impartiality of Judges of this Court.
63. Again, in Para 79 for the first letter, the alleged contemnors
have stated as follows:
“However Justice Nariman is trying to create anatmosphere of prejudice against some clients so thatno advocate will accept their brief and they will bedenied their constitutional right of being representedby a Lawyer of their choice.”
These allegations that Justice Nariman is wanting to create an
atmosphere of prejudice against some clients is a false allegation
for which no supporting material has been given by the alleged
contemnors in their reply. We do not even understand how the
order passed in Writ Petition (C) No. 191 of 2019 or in Suo Motu
Contempt Petition No. 1 of 2019 would lead to the conclusion
that some clients would be prejudiced as no advocate would
61
accept their brief. There is no basis for this absolutely false
allegation which also amounts to contempt of Court.
64. On Page 81 of the first complaint Shri Vijay Kurle has stated
as follows:
“It is settled law that person having half backedknowledge of law should not be allowed to participate incourt proceedings [Vide:N. Natarajan Vs. B.K. SubbaRao AIR 2003 SC 541]
Then how the person having half backed knowledgewill be allowed to hold the post of Judges in the of theHighest Court of Country i.e. Supreme Court.
This Country had seen the activities of Justice Karnan,where he had passed sentence of punishment against theJudges of Supreme Court. In the present case, theadvocate, who is also officer of the Court is beingpunished by Justice Rohington Nariman & Justice VineetSaran (both are Justice Karnan in making) in anarbitrary manner at their whim & fancies, rather tosatisfy their personal grudges and settle the scores ofpeople who are interested to see Adv. Nedumpara is outof his mission of Transparency. If this is not checked intime then this evil get propagated as tolerance will boosttheir confidence.”
These allegations on the face of it are highly contemptuous. Shri
Vijay Kurle is saying that both the Judges who comprised the
Bench have half baked knowledge of law and they could not have
been allowed to hold the post of Judges in the Supreme Court of
India. The language used is highly intemperate and scandalises
the Court and, therefore, amounts to contempt.
62
65. The next allegations on Pages 8687 are as follows:
“Hence the Observation by Justice Rohington FaliNariman are Unconstitutional and is Contempt ofSupreme Court and also reflects their poor level ofunderstanding and lack of basic knowledge of law.
As per section 52 of Indian Penal Code Justice RohingtonFali Nariman is not entitled for any protection of goodfaith.
Section 52 reads as under;
“Good faith. Nothing issaid to be done or believedin “good faith” which isdone or believed withoutdue care and attention.”
33. Furthermore in para 8 of the Judgment dated12th March, 2019 Justice Rohington Fali Nariman as hefelt aggrieved of case against his close Judge of BombayHigh Court (Justice S.J. Kathawala) had observed thatthe prayers of W.P.(L) No.1180 of 2018 arecontemptuous. This is again travesty of Law on twocounts:
(i) Said Petition was decided by Division Bench ofHigh Court vide order dated 26.07.2018 and at thattime High Court did not find it contemptuous thenhow Justice Rohington Fali Nariman after a period of8 months can not comment it to be contemptuous.(ii) Secondly the prayers were regarding initiation ofCriminal proceeding against Justice S.J. Kathawallawho acted against various Supreme CourtJudgments and making such prayers is fundamentalright of the victim it cannot be termed as Contempt.”
66. Further on Page 124 of the first complaint it is alleged as
follows:
“Hence it is clear that Justice Rohington Fali Nariman isa person who neither knows the law nor knows its
63
application i.e. neither Command over shastras nor put itinto practice.”
The alleged contemnors could have criticised the correctness of
the judgment, but the allegation that observations of Justice
Nariman amount to contempt of Court or show his poor level of
understanding and lack of basic understanding of law is not
language which a lawyer is expected to use against a sitting
Judge of the Supreme Court. Again, in this very quoted portion a
totally unfounded allegation has been made that Justice Nariman
was aggrieved since allegations had been levelled against his
close Judge of the Bombay High Court (Justice S.J. Kathawala).
The conclusion drawn by Shri Vijay Kurle is not only incorrect
but totally false and appears to have been done with the mala
fide intention of harming the reputation of Justice Nariman and
raising questions with regard to his impartiality or ability. In
fact, Writ Petition No.(L)1180 of 2018 was filed by Shri
Nedumpara before the Bombay High Court praying that criminal
action under Contempt of Courts Act be initiated against Justice
Kathawala. This writ petition was dismissed by the Bombay High
Court. The Bombay High Court did not decide whether Shri
Nedumpara had committed contempt of Court or not. But the
allegations made by Shri Nedumpara were not accepted. This
64
means that the Bombay High Court did not find any merit in the
petition of Shri Nedumpara and dismissed the same. Nothing
has been placed on record to show that this judgment is under
challenge before this Court. The Bombay High Court was not
dealing with the contempt proceedings. The Bench has only
relied upon the judgment to support his observation that Shri
Nedumpara was in the habit of making such accusations against
sitting Judges of the Court.
67. We also fail to understand how Shri Vijay Kurle who is a
lawyer claims that it is his fundamental right to initiate criminal
proceedings against Judges. Some members of the Bar cannot
hold the judiciary to ransom by threatening Judges of initiating
criminal action. If this trend is not dealt with firmly then any
party against whom a case is decided will start filing criminal
cases against judges.
68. The relationship between the Bench and the Bar should be
a cordial relationship with mutual respect for each other.
Lawyers who try to browbeat or threaten judges have to be dealt
with firmly and there can be no illfounded sympathy for such
65
lawyers. Such lawyers do nothing to help the legal fraternity
much less the Bar.
69. Shri Vijay Kurle has further made the following observations
in Para 35 on page 103 of the first complaint:
“35. In view of the above settled law it is clear thatJustice Rohington Fali Nariman is not having basicknowledge of law or he has a tendency to lower down theauthority of Hon’ble Supreme Court by treating himabove law.”
Again, these allegations are not only totally baseless but the
allegations themselves lower the majesty of this Court.
70. Shri Vijay Kurle in Para 36 on page 112 of his letter has
stated as follows:
“36. Worst part is that Justice Justice Rohington FaliNariman in para 8 of his order tried give a certificate toJustice Kathawalla that he is being attacked for lawfulorder. In fact the petition was filed by advocate forobservations against an advocate without issuing anynotice to him which is are primafacie illegal and againstthe settled legal principle by various Supreme Judgmentsand more particularly in Sarwan Singh Lamba’s Case(Supra). Said matter being subjudice should not becommented by Justice Rohington Fali Nariman.
So the Criminal minded Judges by twisting materialfacts, by misleading legal position and by misinterpretingthe settled law of Hon’ble Supreme Court are trying tomake the Court as their personal property. AbsolutePower corrupts Absolutely. And such type of Judge arerunning syndicate to extort money for giving favourableorders to the underserving people.”
66
We are constrained to observe that Shri Vijay Kurle has totally
misread and misquoted the order of Justice R.F. Nariman. In
Para 8 of the said order in Writ Petition (C) No. 191 of 2019 after
referring to the order passed by a learned Single Judge of the
Bombay High Court it is recorded that Shri Nedumpara filed Writ
Petition No.L1180 of 2018 in his own name against the learned
Single Judge of the Bombay High Court who has passed the
order and the learned Single Judge was arrayed as the sole
respondent in the said writ petition. The Court records that the
petition was dismissed as not maintainable. Therefore, the
allegations made, that the matter was subjudice are totally false
and misleading. The Court has noted that the matter has been
finally decided and no material has been placed on record to
show that this judgment has been challenged.
71. What is even more shocking is the next paragraph where it
is stated that criminal minded judges by twisting facts and by
misleading legal position and misinterpreting the laws of this
Court are trying to make the Court as their personal property. In
the context in which these allegations have been made it is
apparent that though not named, these allegations are against
the Judges who constitute the Bench which decided Writ Petition
67
(C) 191 of 2019. No discussion is required to hold that such
allegations are scandalous and amount to contempt of Court.
Shri Vijay Kurle has the temerity and gall to make the
accusations against 2 sitting Judges of this Court alleging that
they are criminal minded Judges, that they have twisted material
facts and have misinterpreted the settled laws of this Court. We
fail to understand what is meant by ‘misleading legal position’.
The allegations that these Judges are trying to make the Court
their personal property and are running a syndicate and passing
favourable orders to undeserving people to extort money are
scandalous and scurrilous and no great discussion is required to
hold that they amount to contempt of Court.
72. In Para 37, on page 113 of the first complaint, Shri Vijay
Kurle alleges that Shri Nedumpara wanted prosecution of a
learned Judge of the Bombay High Court and also wanted
compensation for violation of his fundamental rights. That
petition has been dismissed by the Bombay High Court. As far
as we know that judgment has not been challenged which clearly
indicates that the Bombay High Court did not accept the
contention of Shri Nedumpara that the judge was liable to be
prosecuted or that Shri Nedumpara was entitled to any
68
compensation. It is surprising that thereafter the alleged
contemnors made the following submissions on page 114 of the
first letter:
“So observation of Justice Justice Rohington FaliNariman are primafacie seems to be the outcome of hisfrustrated mind or done to help Justice Kathawala ofBombay High Court whose orders are set aside by HigherBenches for his misuse of power with strict & harshobservation.[Trident Steel and Engineering Co. Vs.Vallourec 2018 SCC OnLine Bom 4060]. The saidJustice Kathawala who is caught in sting opertation &his corrupt practices are under scrutiny before (Five –Judge Bench of Hon’ble Bombay High Court). Hence itis clear that Justice Rohington Fali Nariman tried to savean accused Judge and in both the eventuality he is unfitto work as a Judge of a Highest Court and is liable to beremoved forthwith by using powers under “InHouseProcedure’ as done in Justice Karnan’s case.”
Again, the allegations made are totally scandalous. Alleging that
a judge has passed an order as an outcome of his frustrated
mind is, in our opinion, a highly scandalous allegation. The
other allegation that the order was passed with a view to help
Justice Kathawala is equally scandalous. These allegations also
amount to contempt.
73. On Page 93 of the first letter the following allegations have
been made:
“So Division Bench of Hon’ble Bombay High Court whichdecided the Writ Petition of Mr. Nedumpara did not find itas Contempt. Full Bench of Supreme Court did not find
69
it as Contempt but after 8 months Justice Rohington FaliNariman call it as contemptuous it not only being judicialimpropriety to be abide by views of larger bench but evenby brother Judges but also proves ulterior motive ofJustice Nariman.
The Petition for prosecution of Judge can never becontempt if not being frivolous. Rather it is duty of theadvocate to make complaint of corrupt Judges.”
74. Further on Page 134 of the first letter the alleged
contemnors have made the following allegations:
“In present case Justice Nariman had done the samewrong. It is done with malafide intention and for ulteriorpurposes as exfacie proved from the record andexplanation given in the proceeding prasa.
XOXO) Under these circumstances since JusticeNariman is Judge of a Supreme Court, he does notdeserve any leniency...”
75. On Page 135 of the first letter, Shri Vijay Kurle has made
the following allegations:
“In the present case when Justice Rohington Fali Narimanhad not taken any action on the spot i.e. on 5th March,2019 then there was no such urgency to bot to follow theprocedure of Section 14 & Section 15 of Contempt ofCourts Act 1971 as ruled by Full Bench of Hon’bleSupreme Court in Dr. L.P. Mishra Vs. State of U.P.(1998) 7 SCC 379 (Supra).
But Justice Rohington Fali Nariman had acted againstthe procedure without any explanation as to what is theurgency to not to follow the procedures mandated underthe law. This itself is a ground to infer that he have beenactuated by an oblique motive or corrupt practice.
70
[Vide : R.R. Parekh Vs. High Court of Gujarat (2016)14 SCC 1]”
The allegations that “this itself is a ground to infer that he have
been actuated by an oblique motive or corrupt practice” is a totally
baseless and unfounded allegation which scandalises this Court
and lowers the majesty of this Court. When any person whether
he be a party to the proceedings or not criticizes a judgment of a
court he could do so as long as that party does not level
allegations of malafide, ulterior motives, extraneous reasons etc.
In the portions quoted above Shri Vijay Kurle has levelled
allegations challenging the impartiality of Judges of this Court
and he has also stated that the orders were passed with malafide
intention and ulterior purpose. These allegations amount to
scandalising the court and therefore there can be no manner of
doubt that Shri Vijay Kurle is guilty of having committed
contempt of this Court.
76. On Pages 150154 of the first complaint Shri Vijay Kurle
has stated as follows:
“XIII) #CHARGE# PASSING ORDER WITHULTERIOR MOTIVE TO SAVE ACCUSED JUDGES.J.KATHWALA AGAINST WHOM “INDIAN BARASSOCIATION” GOT DEEMED SANCTION MAKESJUSTICE ROHINGTON FALI NARIMAN LIABLE FOR
71
PROSECUTION UNDER SECTION 218 OF INDIANPENAL CODE.
xxx xxx xxx
This being the position, there was no occasion or reasonfor Justice Rohington Fali Nariman to make suchirrelevant, unlawful and uncalled for observation. It isclear that said observations are made with ulterior motiveto save his friend Justice S.J. Kathawalla and thereforeliable to be prosecuted under section 218 of Indian PenalCode.
XIV) CHARGE # INABILITY TO INTERPRET THESUPREME COURT JUDGMENT:
In para 9 of the judgment Justice Rohington FaliNariman relied upon the Constitution Bench judgment inthe case of Sukhdev Singh Sodhi v. Chief Justice S.Teja Singh, 1954 SCR 454 to interpret that as per saidruling the Judge who is personally attacked has to hearthe matter himself. In fact the law laid down in the saidjudgment is exactly contrary.”
The allegation that Justice Nariman acted with ulterior motive to
save his friend Justice Kathawala for the reasons stated above is
a totally scandalous and contemptuous allegation. The next
allegation is that Justice Nariman acted in violation of a
judgment of this Court in Sukhdev Singh Sodhi’s case (supra).
Without commenting on the correctness or otherwise of the
allegations, the following observations under this heading are
totally contemptuous:
“This exfacie proved very poor level of understanding ofJustice Rohington Fali Nariman.….
72
But this provision and judgment was conveniently,deliberately ignored by Justice Rohington Fali Nariman orhe may not know this basic law which is sufficient toprove his incapacity and poor level of understandingwhich is sufficient to remove him forthwith fromjudiciary.”
The language used by Shri Vijay Kurle that Justice Nariman does
not even know the basic law and, therefore, is incapacitated due
to his poor level of understanding to be removed forthwith from
the judiciary is highly intemperate language which amounts to
gross contempt of Court.
77. At Page133 of the first complaint it is alleged as follows:
“In Kapol Coop. Bank Ltd. Vs. State of Maharashtra2005 Cri.L.J.765 it is ruled that the term “Abuse ofProcess of Court” means act of bringing frivolous,vexations and oppressive proceedings.
The same is the act of Justice Rohington FaliNariman by bringing Contempt case against AdvocateNedumpara.”
78. Again, at Pages 167168 of the first complaint following has
been observed:
“So it is clear that the process of law is being grosslyabused by Justice Rohington Fali Nariman & JusticeVineet Saran under impressin that the Court is theirpersonal & private property.
xxx xxx xxx
73
CHARGE # BREACH OF OATH TAKEN AS A HON’BLESUPREME COURT JUDGE BY ACTING PARTIALLY,WITH ILLWILL AND NOT UPHOLDING THECONSTITUTION AND LAW.”
For the reasons stated above the allegation that 2 Judges
consider this Court as their personal property is a scandalous
allegation and amounts to contempt.
79. In the complaint filed by Shri Vijay Kurle in Para 49 on
pages 171173, there is a reference to the complaint filed by Shri
Rashid Khan Pathan and it is stated that the other complaint
filed by Human Rights NGO is selfexplanatory. The allegations
read as follows:
“That the another complaint by Human Right (N.G.O.) inother matter against Justice Rohington Fali Nariman &Justice Vineet Saran, is selfexplanatory aboutincapacity, poor level of understanding, tendency toundermine the authority of Supreme Court and bringingthe rule of law into disrepute and committing fraud onpower to grant unwarranted relief to the undeservingaccused and denying relief to the deserving victimwoman.
xxx xxx xxx That accused Justice Rohington Fali Nariman & Vineet
Saran in Criminal Appeal No.387 of 2019 [Aarish AsgarQureshi vs. Fareed Ahmed Qureshi 2019 SCC OnLineSC 306] had with malafide intention to help accused hadobserved that police report have no evidentiary value fordirecting enquiry against the accused husband on theapplication given by wife.
xxx xxx xxx
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But accused Judges in a hurry to help accusedentertained the appeal against the order directing thecompliant and passed order in utter disregard anddefiance of law laid down by Hon’ble Supreme Court andalso against the statutory provisions of Section 341 ofCriminal Procedure Code and acted unconstitutionally.”
Not only are these allegations scandalous and contemptuous and
undermine the authority of this Court, but this clearly shows
that the Shri Vijay Kurle was aware of the complaint filed by Shri
Rashid Khan Pathan. This clearly indicates that Shri Rashid
Khan Pathan had not only sent the complaint to the Hon’ble
President of India and the Chief Justice of India but had
communicated the same to others including Shri Vijay Kurle and
therefore, this complaint was available in the public domain.
2 nd Complaint dt.19.03.2019 by Shri Rashid Khan Pathan
80. We now take up the complaint filed by Shri Rashid Khan
Pathan, who is said to be the National Secretary of the Human
Right Security Council (N.G.O). The basis of the complaint is an
order passed by two Judges of this Court (Justice R. F. Nariman
and Justice Vineet Saran) in Criminal Appeal No.387 of 2019. In
paragraphs 4 and 6 of this complaint, the complainant made the
following allegations:
75
Pgs. 45“4. The present Complaint is regarding the misuse ofpower of Justice Rohinton Fali Nariman & Justice VineetSaran while quashing the prosecution ordered by Hon’bleBombay High Court against accused Under Section 340of Criminal Procedure Code.”
xxx xxx xxx
6. The reasoned and lawful order of High Court was setaside by accused Judge for extraneous consideration andin contempt of Constitution Bench judgment of Hon’bleSupreme Court.”
81. Criminal Appeal No. 387 of 2019 was filed by a person who
was aggrieved by the order whereby the High Court had directed
that action be taken against him under Section 340 of the Cr.PC.
Vide judgment dt. 26.02.2019 in Aarish Asgar Qureshi v.
Fareed Ahmed Qureshi and Anr.16 this court set aside the said
order. In that case the respondent before this Court was
represented by Shri Nilesh Ojha, alleged contemnor no.3 herein.
It was virtually a private case between two parties having no
element of public interest and therefore we do not understand as
to why Shri Rashid Khan Pathan was so upset by this order that
he filed a complaint in his capacity as National Secretary of the
Human Rights Security Council.
16 2019 (4) SCALE 606
76
82. Even assuming that Shri Rashid Khan Pathan, could
criticise the judgment he should have stopped there. But in this
case, Shri Rashid Khan Pathan did not stop at criticising the
judgment. He has unambiguously attributed motives to the
Judges by using phrases such as “judges deliberately ignored the
settled legal position” or “deliberately and conveniently ignored”
reference to certain observations, and “deliberately
misinterpreted” certain judgments cited before the Court.
Further, it is alleged that the fact that the Bench acted in
defiance of the Constitution Bench judgment of the Court is
sufficient to prove the mala fide of the accused Judges. First of
all, it is not for Shri Rashid Khan Pathan to decide whether the
judgment is correct or not. There is a legal procedure established
whereby a review petition or a curative petition could be filed. We
cannot go into the merits of the judgment but even assuming
that the judgment is not in consonance with the judgment of the
Constitution Bench then also that is no ground to allege mala
fide against the Judges comprising the Bench. He has also made
allegations that the Judges have breached the oath of office and
acted in a biased manner.
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83. One of the reasons given by Shri Rashid Khan Pathan for
filing the complaint is that he had filed a complaint against Shri
Fali S. Nariman, Senior Advocate of this Court, alleging anti
national activities being committed by Shri Fali S. Nariman. In
that case, Shri Rashid Khan Pathan was represented by Shri
Nilesh Ojha, alleged contemnor no.3. On this ground, it is
averred that Justice Nariman should not have heard the matter.
The complaint in question is stated to have been filed on
19.02.2019. No material has been placed on record to show
whether notice, if any, was issued on this complaint. The
judgment in question was delivered on 26.02.2019 and there was
no request by Shri Nilesh Ojha that any of the Judges should
recuse from the hearing of the matter. There is no material to
show that the factum of this complaint was brought to the notice
of the Hon’ble Bench. Even if that had been brought to the
notice, we find that this should not be a sufficient ground for
recusal. If Judges start recusing on any such frivolous grounds,
it would lead to forum hunting. If a litigant wants to avoid any
Judge, he can easily ensure that a complaint, frivolous or
otherwise, is filed against a Judge or a member of his family and
then ask for recusal of the Judge. We cannot permit the
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judiciary to be held ransom at the hands of such litigants or
lawyers.
84. There are other parts of the complaint by Shri Rashid Khan
Pathan that we would like to highlight:
Pg.16“11) xxx
So the observations of Justice Rohinton Fali Nariman& Justice Vineet Sareen are not only perincuriam butContempt of law laid down by Full Bench of Hon’bleSupreme Court and also reflects their lack of basicknowledge.”
Pg. 20“But while passing the final order, the reference to saidobservations were deliberately and conveniently ignoredby the accused Judges more particularly by JusticeRohinton Fali Nariman.”
Pg. 33“This judgement was relied and referred by respondentJudges in their judgment dated 26th February, 2019 butdeliberately misinterpreted it with a view to set aside thelawful order thereby giving undue advantage to accused.”
Pg. 34“But the Respondent Judges deliberately ignored thesettled legal position by Supreme Court and various HighCourts.”
Pg. 39“Both these judgments were relied by Counsel for wifeand are in the compilation filed in the Supreme Court.These judgments are also referred by Ld. Sessions Judgein its order dated 12th December, 2018. Said order isannexed with Appeal before Hon’ble Supreme Court atPage No.172 194 and abovesaid two judgments arereferred in para 21 (Page No. 185 of S.L.P.) & Para 22(Page No. 186 of S.L.P.)
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But Respondent Judges deliberately ignored the saidlegal position settled by Hon’ble Supreme Court andTherefore the said order dated 26th February, 2019 is notonly perincurriam but Contempt of Hon’ble SupremeCourt.”
Pg. 43“But the Respondent Judges deliberately ignored toreproduce these paras in their order with ulterior motiveto help the accused.
Moreover how the said case law is either applicable ornot applicable is not discussed in the judgment exceptreferring it in a cursory manner.”
Pg. 52“But Justice Rohinton Fali Nariman acted in utterdisregard and difiance of Constitution Bench’s judgmenteven if it was brought to his notice.
This is sufficient to prove the malafides of the accusedJudges i.e. Justice Rohinton Fali Nariman & JusticeVineet Saran.”
Pg. 62“But here the Respondent Judges breach the oath takenas a Judge by acting contrary to law and in a biasedmanner and therefore they forfeited their right to sit onthe chair of highest Court of the Country.”
Pg. 71 “38). POOR LEVEL OF UNDERSTANDING OF A
JUDGE:
xxx xxx xxx”
Pg. 77“45). Under these circumstance Justice RohingtonFali Nariman having knowledge of personal enmitybetween his father and Adv. Nilesh Ojha, instead ofrecusing himself, heard the case represented by Adv.Nilesh Ojha and out of his earlier prejudices passed theillegal order by willful disregard and defiance of thevarious law laid down by the Hon’ble Supreme Court.”
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85. The allegations in the portions which have been quoted
above allege that the Bench passed orders in wilful disobedience
of law and committed contempt of court, that the judges
deliberately and conveniently ignored certain portions of the
judgment cited, that they deliberately misinterpreted the orders,
that they deliberately ignored the settled legal position, that the
judges acted with ulterior motive to help the accused, and that all
this is sufficient to prove the malafides of the two judges whom
Shri Rashid Khan Pathan describes as accused. These
allegations are not only false but have been made only with a
view to ensure that Justice Nariman should have recused himself
from hearing the case in which he was still to hear Shri
Nedumpara on the question of punishment. Further there is an
allegation that Justice Nariman had the knowledge of personal
enmity between his father and Shri Nilesh Ojha. The language
used is not only objectionable, but by questioning the
impartiality, integrity, ability of the Judges and by saying that the
judges deliberately acted in a particular manner and raising
allegations of malafide against them Shri Rashid Khan Pathan
has also committed contempt of Court.
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86. We have already extracted large portions of the letters. Both
the letters on their face are totally contemptuous in nature. No
litigant has a right to attribute motives to a Judge. No litigant
has a right to question the integrity of a Judge. No litigant has a
right to even question the ability of a Judge. When the ability,
integrity and dignity of the Judges are questioned, this is an
attack on the institution. It is an attack on the majesty of law
and lowers the impression of the Courts in the public eye. The
allegations in the complaints are scurrilous and scandalous.
Shri Vijay Kurle and Shri Rashid Khan Pathan do not deny that
they have sent these letters. They, in fact, justify the sending of
these letters. There is not even a word of regret in any of the
affidavits filed by them.
87. We now examine the context in which these allegations have
been made. The first complaint by Shri Vijay Kurle dated
20.03.2019 is basically in relation to the order dated 12.03.2019.
Shri Nedumpara was held guilty of contempt vide order dated
12.03.2019. Notice was issued to him for being heard on the
issue of punishment. This notice was made returnable within
two weeks and the record shows that this notice was actually
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made returnable on 27.03.2019. In the meantime, both Shri
Vijay Kurle and Shri Rashid Khan Pathan sent these complaints
praying that action be taken against the Members of the Bench.
This, in our opinion, is the grossest form of contempt because the
intention was to intimidate the Judges so that they should desist
from taking action against Shri Nedumpara. Shri Nedumpara in
his affidavit filed in this Court stated that he barely knew Shri
Vijay Kurle and Shri Nilesh Ojha. According to him, he did not
know Shri Rashid Khan Pathan at all. On the basis of the
statement we have discharged Shri Nedumpara. He, in fact,
stated that he came to know about these complaints only after
notice was issued and his colleague Mrs. Amin took out the
complaints filed by Shri Vijay Kurle and Shri Rashid Khan
Pathan from the social media.
88. In the complaint filed by Shri Vijay Kurle there are
references to many documents and allegations that certain issues
raised in the Court were ignored. The order dated 12.03.2019
convicting Shri Nedumpara which is the fulcrum of the complaint
of Shri Vijay Kurle was passed without issuing notice to Shri
Nedumpara. Shri Vijay Kurle alleges ignorance of law and failure
to comply with various Constitution Bench judgments without
83
even caring to ascertain whether these judgments were actually
cited before the Bench or not. There can be no manner of doubt
that this complaint by Shri Vijay Kurle was filed with a view to
intimidate the Judges so that no action against Shri Nedumpara
is taken.
89. Coming to the complaint of Shri Rashid Khan Pathan. The
same relates to the case in which Shri Nilesh Ojha was a counsel
for the respondent. Any party who loses a matter in a Court may
turn out to be disgruntled and may feel that justice had not been
done to it. The judgment in Aarish Asgar Qureshi (supra) was
delivered on 26.02.2019. Shri Rashid Khan Pathan in his
complaint made reference to various cases which, according to
him, were cited before the Bench. He urges that these cases were
ignored or misinterpreted by the Bench. The question is as to
how Shri Rashid Khan Pathan came to know about these facts.
The only source of information could be Shri Nilesh Ojha.
90. No doubt, any citizen can comment or criticise the judgment
of this Court. However, that citizen must have some standing or
knowledge before challenging the ability, capability, knowledge,
honesty, integrity, and impartiality of a Judge of the highest
court of the land. We are informed that Shri Vijay Kurle has
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hardly 7 years standing at the Bar. His complaint is full of
mistakes and he has not even cared to check the spelling of the
name of the Judge who he claims has no knowledge of law. His
professional credentials are not known and we fail to understand
how can he adorn the robes of a Judge to pass judgment on the
Judges of the highest court, that too by using highly intemperate
language and language which casts a doubt not only on the
ability of the Judges but scandalises the Court and lowers the
dignity and reputation of this Court in the eyes of the general
public. These sort of scandalous allegations have to be dealt with
sternly and nipped in the bud. As far as Shri Rashid Khan
Pathan is concerned, he professes to be the National Secretary of
an NGO. Other than that, it does not even appear that he is a
lawyer. What was the public interest in raking up issues with
regard to a litigation which had no element of public interest? It
deals mainly with quashing of the proceedings initiated by the
Bombay High Court against a party under Section 340 of the
CrPC. There is no explanation as to what the case of Aarish
Asgar Qureshi (supra) has got to do with this case. It is not as if
somebody has been put behind bars or the human rights of any
person had been violated. Shri Rashid Khan Pathan is basically
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waging a war against the Members of the Bench and against this
Court at the instance of Shri Nilesh Ojha, if not Shri Nedumpara
because in his complaint he states that Shri Nilesh Ojha was the
lawyer for the respondent before the Court and could be the only
person who could have supplied the material to Shri Rashid
Khan Pathan.
Alleged Contemnor No. 3Shri Nilesh Ojha
91. This brings us to Shri Nilesh Ojha, alleged contemnor no. 3.
At the outset, we may point out that Mr. Nedumpara in his
discharge application has very clearly disassociated himself from
the letters and has stated that he barely knows Shri Vijay Kurle
and Shri Nilesh Ojha and has also stated that he has no concern
with the communication sent by them. This is not the stand of
alleged contemnor no. 3, Mr. Nilesh Ojha. He is the National
President of the Indian Bar Association of which Mr. Vijay Kurle
is the State President. During these entire proceedings he has
relied upon a technical objection that he has not signed the
letters, but the tenor of his written submission as well as the
various affidavits again show that he has not disassociated from
what has been said in the complaint. In fact, he has tried to
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justify the same. The cat comes out of the bag when we go
through Para 12.41 of the discharge application filed by Shri
Nilesh Ojha. The following averments are extremely relevant:
“12.41. That, the entire letter dated 23.03.2019 sent byAdv. Milind Sathe nowhere states that which part ofComplaint given by me, Adv. Vijay Kurle,& Rashid KhanPathan is wrong or incorrect…”
This clearly indicates that the letters sent by Shri Vijay Kurle and
Rashid Khan Pathan were sent with the knowledge and consent
of Shri Nilesh Ojha.
92. We may also now refer to some other facts. The complaint
of Rashid Khan Pathan is based on the case which was argued by
Shri Nilesh Ojha. He has made various allegations that some
arguments were raised by Shri Nilesh Ojha which were not
considered by the Bench or were brushed aside. He could have
come to know about this only if Shri Nilesh Ojha had told him
and therefore, it cannot be believed that Shri Nilesh Ojha was not
aware or did not support what was said in the complaint of Shri
Rashid Khan Pathan. The conduct of Shri Nilesh Ojha even while
arguing the matter was to support each and every thing said in
the complaints filed by Shri Vijay Kurle and Shri Rashid Khan
Pathan. He may not have signed the complaint but we have no
87
doubt in our mind that both these complaints were sent in
coordination with each other. In fact, Shri Vijay Kurle in his
complaint refers to the complaint made by Shri Rashid Khan
Pathan. If the complaint of Shri Rashid Khan Pathan is
addressed only to the President of India and the Chief Justice of
India, which was sent on 19.03.2019 how could Shri Vijay Kurle
on 20.03.2019 make reference to the allegations in the complaint
made by Shri Rashid Khan Pathan and support the same unless
he had read them.
93. As far as the complaint of Shri Vijay Kurle is concerned, it is
nothing but a proxy battle for Shri Nedumpara. If Shri
Nedumpara did not know Shri Vijay Kurle, how could such a
detailed complaint running into 183 pages have been filed by
Shri Vijay Kurle on 20.03.2019 when the matter of Shri
Nedumpara was still pending in this Court. This Court convicted
Shri Nedumpara for contempt of Court by judgment dated
12.03.2019 and directed Shri Nedumpara to appear so that
punishment could be imposed on him for contempt of Court. The
matter was listed on 27.03.2019. In our opinion, both these
complaints were sent to the President of India with a view to
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browbeat this Court so that this Court is terrorised into not
taking action against Shri Nedumpara. In a matter which was
still pending in so far as imposition of punishment was
concerned, Shri Vijay Kurle and Shri Rashid Khan Pathan had no
business sending these communications. These communications
were widely circulated on social media, as is apparent from the
affidavit of Mrs. Rohini M. Amin filed in the present case where
she has stated that she obtained a copy of the complaint from the
social media. Shri Rashid Khan Pathan had addressed his
complaint only to the President of India and the Chief Justice of
India. As far as the complaint of Shri Vijay Kurle is concerned, it
is addressed to many other persons including all Judges of the
Supreme Court, all Judges of all the High Courts, all State Bar
Councils and the Bar Council of India. Obviously, the President
of India or the Chief Justice of India did not put this complaint
on social media and only Shri Rashid Khan Pathan could have
done so. It was also obvious that this was done only with the
active connivance and with the consent of Shri Nilesh Ojha since
he is the President of the Indian Bar Association. It is only when
notice of contempt was issued, that Shri Nedumpara stated that
he does not know Shri Vijay Kurle, Shri Nilesh Ojha and Shri
89
Rashid Khan Pathan and totally disassociated himself from the
complaints. As far as Shri Nilesh Ojha is concerned, he says that
he has not sent the complaint nor the same was issued with his
knowledge. However, till date Shri Nilesh Ojha has not sent any
communication to anybody or in the public domain that he has
disassociated himself with the complaint of Shri Vijay Kurle. Shri
Nilesh Ojha is the President of the Indian Bar Association. The
complaint is sent by Shri Vijay Kurle who is the State President
of the Maharashtra and Goa Unit of Indian Bar Association. This
was a complaint by Shri Vijay Kurle not in person but in his
official capacity as State President of the Maharashtra and Goa
Unit of the Indian Bar Association. Shri Nilesh Ojha is the
President of the Indian Bar Association. When a member of the
body of lawyers sends such a vitriolic communication making
scandalous allegations against Judges the head of such body
cannot shirk responsibility for the same. The head should either
immediately send a contradiction or otherwise it has to be
presumed that the complaint has been sent with his knowledge,
consent and approval.
90
94. In view of the facts discussed above, we are of the clear view
that the complaint sent by Shri Vijay Kurle was in connivance
and at the behest of Shri Nilesh Ojha. Therefore, we have no
doubt in our mind that all three i.e. Shri Vijay Kurle, Shri Rashid
Khan Pathan and Shri Nilesh Ojha were working in tandem and
making scurrilous and scandalous allegations against the
Members of the Bench, probably with the intention that the
Members of the Bench would thereafter not take action against
Shri Nedumpara.
Defence of Truth
95. Though not so much in the oral arguments but in the
written arguments the alleged contemnors have also raised the
plea of truth as a defence. Truth as a defence is available to any
person charged with contempt of Court. However, on going
through all the written arguments and the pleadings, other than
saying that the Judges had misinterpreted the judgments of this
Court or had ignored them or that Justice R.F. Nariman was
biased, there is no material placed on record to support this
defence. The allegations are also scurrilous and scandalous and
91
such allegations cannot be permitted to be made against the
Judges of highest Court of the country.
96. Keeping in view the aforesaid discussion, we hold all three
alleged contemnors i.e. Shri Vijay Kurle, Shri Rashid Khan
Pathan, and Shri Nilesh Ojha, guilty of contempt.
97. We place on record our appreciation for the valuable
assistance rendered by Shri Siddharth Luthra, amicus curiae.
We also reject all the baseless allegations levelled against him by
the contemnors.
98. The matter be now listed on 01.05.2020 for hearing the
contemnors on the issue of sentence, through video conferencing.
…………………………….J.(Deepak Gupta)
…………………………….J.(Aniruddha Bose)
New DelhiApril 27, 2020
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